# Petition — Pacileo v. Walker > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2611%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 449 U.S. 86 ## Text IN THE SUPREME COURT OF THE October Term, 1979™*" — No. RICHARD F. PACILEO, SHERIFF, Petitioner, V. JAMES DEAN WALKER, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF CALIFORNIA GEORGE DEUKMEJIAN, Attorney General of the State ot California ROBERT H. PHILIBOSIAN, Chief Assistant Attorney General Criminal Division ARNOLD 0. OVEROYE Assistant Attorney General GREGORY W. BAUGHER Deputy Attorney General 555 Capitol Mall, Suite 350 Sacramento, California 95814 Telephone: (916) 445-6981 Attorneys for Petitioner TOPICAL INDEX Page OPINION BELOW 1 JURISDICTION 2 QUESTION PRESENTED 3 STATUTES INVOLVED a STATEMENT OF THE CASE 4 ARGUMENT IN AN INTERSTATE EXTRADITION PROCEEDING, THE COURTS OF THE "ASYLUM" OR "SENDING" STATE LACK JURISDICTION TO REVIEW THE CONSTITUTIONALITY OF THE PRISONS IN THE DEMANDING STATE 8 CONCLUSION 23 TABLE OF AUTHORITIES CITED Page Appleyard v. Massachusetts EE Ee ee ae 17 Biddinger v. Commissioner of Police See Wa, EEO 6 st 6 tt lw 8 ew 19 Commonwealth of Kentucky v. Dennison (1860) 24 How. 66, 100-103. k7,20 Drew v. Thaw YS - re 19 Finney v. Arkansas Board of Corrections (8th Cir. 1974) 505 F.2d 194 i area 14 Finney v. Hutto een. seems SLO F.SUpp. .... 14 Finney v. Hutto (8th Cir. 1977) 548 F.2d 740 ... .14,15 Finney v. Mabry (E.D. Ark. 1978) 458 F.Supp. 720 .. 15 Hogan v. O'Neill rr 5 5 ls klk tlw 18 Holt v. Hutto (E.D. Ark. 1973) 363 F.Supp. 194 .. 14 Holt v. Sarver (E.D. Ark. 1969) 300 F.Supp. 825 .. 14 Holt v. Sarver (E.D. Ark. 1970) 309 F.Supp. 362 .. 14 ii. TABLE OF AUTHORITIES CITED Holt v. Sarver (8th Cir. 1971) 442 F.2d 304 . Hutto v. Finney . (1978) 437 U.S. 678 Hyatt v. Corkran (1903) 188 U.S. 691 Innes v. Tobin (1916) 240 U.S. 127 Lascelles v. Georgia (1893) 148 U.S. 537 Marbles v. Creecy (1909) 215 U.S. 63 Matter of Strauss (1905) 197 U.S. 324 McNichols v. Pease (1907) 207 U.S. 100 Michigan v. Doran (1978) 439 U.S. 282 Nevada v. Hall (1979) 440 U.S. 410 Pearce v. Texas (1694) 155 U.S. 3Li Pierce v. Creecy (1908) 210 U.S. 387 iii. Page 14 15 17 16 . 19,20 19 17 18 Passim 17 19 » 0,589 TABLE OF AUTHORITIES CITED (Continued ) Ponzi v. Fessenden (1922) 258 U.S. 254 Roberts v. Reilly (1885) 116 U.S. 80 Strassheim v. Daily ee (IGE) 22% U.S. 200... Sweeney v. Woodall (1952) 344 U.S. 86 AUTHORITIES United States Constitution art. IV, § 2; G@leuse Zz United States Constitution Eighth Amendment CODES United States Code, § 3182 tit. ‘is ; California Penal Code §§ 1548.1 1548.2 iv. Page 17 18 19 12 ,13,16 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1979 No. RICHARD F. PACILEO, SHERIFF, ) cies . JAMES DEAN WALKER, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF CALIFORNIA Petitioner, the Sheriff of El Dorado County, California, prays that a writ of certiorari issue to review the judgment or decree of the Supreme Court of the State of California entered on April 9, 1980, in the matter of James Dean Walker on Habeas Corpus. OPINION BELOW The judgment or decree of the lL. Supreme Court of the State of California, staying the extradition of James Dean Walker pending a hearing to decide the petition for writ of habeas corpus on its merits, is set out in Appendix A. It is an unreported judgment or decree which is nevertheless final as to the issues pre- sented herein. The order denying a re- hearing is set out in Appendix B. JURISDICTION The judgment or decree of the Supreme Court of the State of California was filed on April 9, 1980. Under California law, that order is final as to the issues raised in this petition. (See Atlantic Richfield Co. v. Superior Court (1975) 51 Cal.App.3d 168, 170; 124 Cal.Rptr. 63; Yoakum v. Small Claims Court (1975) 53 Cal.App.3d 398; 125 Cal. Rptr. 882; Lang v. Superior Court (1975) 53 Cal.App.3d 852; 126 Cal.Rptr. 122.) A 2 timely application for rehearing was denied on April 15, 1980. The jurisdic- tion of this Court is invoked under 28 U.S.C. 1257(3) and Rule 22 of the Revised Rules of the Supreme Court of the United States. QUESTION PRESENTED Whether in the context of an inter- state extradition proceeding, the courts of the "asylum" or "sending" state have jurisdiction to conduct an evidentiary hearing on habeas corpus to determine the merits of a fugitive's allegation that the prison in which the demanding state may incarcerate him is not presently being operated in conformance with the Eighth Amendment of the United States Constitution. STATUTES INVOLVED The Constitutional and statutory provisions involved are set forth in s B Appendix C. They are: United States Constitution, article IV, section 2, clause 2; Title 18, section 3182 of the United States Code; California Penal Code sections 1548.1 and 1548.2. STATEMENT OF THE CASE On December 11, 1979, the Governor of Arkansas executed a requisition for the arrest and rendition of James Dean Walker, who was then within the State of California and was alleged to be a fugi- tive from justice. The Governor of Arkansas submitted proof that on December 6, 1965, after being convicted of murder in the first degree, James Dean Walker was sentenced to the Arkansas State Penitentiary "for the remainder of his natural life.'' Walker was received by the Arkansas Department of Corrections on or 4. about December 14, 1965. On or about April ‘4, 1975, Walker escaped from the custody of the Department of Corrections. By information number 75-18, filed on or about April 11, 1975, the prosecuting attorney for Lincoln County, Arkansas, charged Walker with the crime of escape, and a bench warrant was issued for Walker's arrest. On February 13, 1980, the Governor of California honored the request of the Governor of Arkansas and duly issued a warrant of arrest and rendition. This warrant was then served upon James Dean Walker by the Sheriff of El Dorado County. Thereafter, Mr. Walker challenged his custody under the California Governor's warrant by successively filing petitions for writ of habeas corpus in which he alleged that the Arkansas prisons to which he would be returned violated ss the Eighth Amendment proscription against cruel and unusual punishment. On February 27, 1980, the Superior Court of El Dorado County denied Mr. Walker's first petition (Appendix D). On March 6, 1980, the Court of Appeal, Third Appel- late District, denied Mr. Walker's second petition for writ of habeas corpus (Appen- dix E). On March 12, 1980, the United States District Court for the Eastern District of California denied Mr. Walker's third petition (Appendix F). Mr. Walker then applied to the California Supreme Court for a writ of habeas corpus. On April 9, 1980, that court issued an order directing the El Dorado County Superior Court "to conduct hearings to determine if the penitentiary in which Arkansas seeks to confine peti- tioner is presently operated in conformance with the Eighth Amendment of the United 6. States Constitution and thereafter decide the petition on its merits" (Appendix A). A timely petition for rehearing was denied on April 15, 1980 (Appendix B). On April 21, 1980, upon the appli- cation of the petitioner herein, Justice Rehnquist issued an order temporarily staying the effect of the California Supreme Court's order of April 9. Justice Rehnquist ordered that a response to the application for stay be filed on or be- fore April 28, 1980. On May 1, Justice Rehnquist continued the stay order pend- ing the timely filing and disposition of a petition for writ of certiorari. ARGUMENT IN AN INTERSTATE EXTRADITION PROCEEDING, THE COURTS OF THE "ASYLUM" OR "SENDING" STATE LACK JURISDICTION TO REVIEW THE CONSTITUTIONALITY OF THE PRISONS IN THE DEMANDING STATE The California Supreme Court. has exceeded its jurisdiction and has violated article IV, section 2, clause 2 of the United States Constitution, as well as the implementing laws and interpretive de- cisions of this Court, by ordering that a hearing be held in a California Superior Court to determine whether the peniten- tiary in which the State of Arkansas intends to inmcarcerate James Dean Walker is currencly operated in a manner which is consistent with the Eighth Amendment. Article IV, section 2, clause 2 of the Constitution provides: "A person charged in any State with treason, felony, or other crime, who 8. shall flee from justice, and be found in another State, shall on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime." This provision has been implemented by the Congress in Title 18 of the United States Code, section 3182, and it has been supplemented by the states through the adoption of the Uniform Criminal Extra- dition Act. In California, the pertinent provisions are Penal Code sections 1548.1 and 1548.2. The Extradition Clause of the Con- stitution and its supporting legislation have been interpreted frequently by this Court. Recently, in Michigan v. Doran (1978) 439 U.S. 282, the court stated: "The Extradition Clause was in- tended to enable each state to bring 9. offenders to trial as swiftly as possible in the state where the alleged offense was committed. (Cit. omitted.) The purpose of the Clause was to preclude any state from becom- ing a santuary for fugitives from justice of another state and thus 'balkanize' the administration of criminal justice among the several states. It articulated, in mandatory language, the concepts of comity and full faith and credit, found in the immediately preceding clause of Art. IV. The Extradition Clause, like the Commerce Clause, served important national objectives of a newly develop- ing country striving to foster national unity." (439 U.S. at pp. 287-288.) The court went on to note that interstate extradition was intended to be a summary 10. executive proceeding in which the judi- ciary plays an extremely limited rule. Thus: "Once the governor has granted extradition, a court conside. ing release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the peti- tioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive. These are historic facts readily verifiable." (439 U.S. at p. 289.) In a previous decision which is entirely consistent with Michigan v. Doran, this Court held unequivocally that the courts of an "asylum" or "send- ing'' state may not adjudicate the pe eS constitutionality of the conditions of prisons in the demanding state. In Sweeney v. Woodall (1952) 344 U.S. 86, 89-90, the court held: "The scheme of interstate rendition, as set forth in both the Constitution and the statutes which Congress has enacted to implement the Constitution, contemplates the prompt return of a fugitive from justice as soon as the state from which he fled demands hin; these provisions do not contemplate an appearance by Alabama [the demanding state] in respondent's asylum to defend against the claimed abuses of its prison system. Considerations funda- mental to our federal system require that the prisoner test the claimed unconstitutionality of his treatment by Alabama in the courts of that State."' (footnotes omitted.) A2. The rationale of the Sweeney decision is particularly applicable to the present case. In Sweeney, this Court was not only concerned with preserving harmony between the states, but it also eschewed the concept that a prisoner who resorted to escape and who managed to cross a state line should be able to litigate constitutional claims about his imprison- ment in a foreign court. This Court noted: "Had he never eluded the custody of his former jailers he certainly would be entitled to no privilege permitting him to attack Alabama's penal process by an action brought outside the ter- ritorial confines of Alabama in a forum where there would be no one to appear and answer for that State." (344 U.S. at p. 89.) In the present case, documents 13. provided by the Governor of Alabama demonstrate that Walker was received by the Arkansas Department of Corrections in December 1965, and that he escaped in 1973. During that time, inmates of the Arkansas prisons filed class action suits challenging the conditions of their confinement, and the federal courts have retained jurisdiction over those claims ever since. In chronological order, the reported decisions in these cases are Holt v. Sarver (E.D. Ark. 1969) 300 F.Supp. 825; Holt v. Sarver (E.D. Ark, 1970) 309 F.Supp. 362; Holt v. Sarver (8th Cir. 1971) 442 F.2d 304; Holt v. Hutto (E.D. Ark. 1973) 363 F.Supp. 194; Finney v. Arkansas Board of Corrections (8th Cir. 1974) 505 F.2d 194; Finney v. Hutto (E.D. Ark. 1976) 410 F.Supp. 251; Finney v. Hutto 14. (8th Cir. 1977) 548 F.2d 740; Hutto v. Finney (1978) 437 U.S. 678; and Finney v. Mabry (E.D. Ark. 1978) 458 F.Supp. 720. In the most recent decision, Finney v. Mabry, the court tentatively approved a settlement agreement authorizing the appointment of a Compliance Coordinator to monitor and report upon changing con- ditions in the Arkansas prisons. Inmates who did not resort to "self help" by es- caping have relied upon the federal court in Arkansas to resolve their claims and are presumably bound by the recent settle- ment agreement. Therefore, in the pres- ent case there are even more compelling reasons than in Sweeney why Walker should be precluded from litigating his consti- tutional claims in the California courts. In this case, federal relief has been available and effective. It is apparent that the order of aS. the California Supreme Court is inconsis- tent with Michigan v. Doran and Sweeney v. Woodall. Moreover, it is apparent that the California Supreme Court did not merely abuse its discretion by ordering a hearing in California on the constitutionality of Arkansas prisons. Decisions of this Court demonstrate that the Extradition Clause limits the jurisdiction of the courts in the "asylum" or "sending" state; it does not merely suggest guidelines for the exercise of judicial discretion. Prior to the adoption of the Con- stitution, the rendition of fugitives from justice was governed by principles of comity between sovereign states. (Innes v. Tobin (1916) 240 U.S. 127, 130- es However, in some respects, in- cluding the interstate rendition of fugitives, the Constitution limited the sovereignty of the states and imposed 16. binding obligations upon them. (Nevada v. Hall (1979) 440 U.S. 410, 425; Common- wealth of Kentucky v. Denrison (1860) 24 How. 66, 100-103.) This Court has stated that "[o]ne accused of crime has a right to a full and fair trial according to the law of the government whose sovereignty he is alleged to have offended, but he has no more than that.'"' (Ponzi v. Fessenden (1922) 258 U.S. 254, 260.) This principle was recog- nized by the framers of the Extradition Clause and by the Congress when it provided a procedure for the prompt arrest and delivery of fugitives. (See Appleyard v. Massachusetts (1906) 203 U.S. 222, 226- 228; Matter of Strauss (1905) 197 U.S. 324, 331, 333; compare Hyatt v. Corkran (1903) 188 U.S. 691.) (Extradition Clause does not apply to persons who are not fugitives.) oe The procedure established by Congress incorporates certain prerequisites to law- ful extradition. It must be shown that the person arrested is charged with a crime in the demanding state, that he is a fugitive from justice, and that a proper demand has been made for his extradition. (Pierce v. Creecy (1908) 210 U.S. 387, 401.) While a person arrested for extra- dition may always allege that these pre- requisites have not been met (McNichols v. Pease (1907) 207 U.S. 100, 109; Roberts v. Reilly (1885) 116 U.S. 80, 94), this Court has consistently held that other matters may not be considered. (E.g. Michigan v. Doran, supra, 439 U.S. 282 (asylum state's courts may not review probable cause determination by demanding state); Hogan v. O'Neil (1921) 255 U.S. 52, 55 (sufficiency of evidence to support charge may not be reviewed in asylum 18. state); Biddinger v. Commissioner of Police (1917) 245 U.S. 128, 135 (defenses to the criminal charge may not be con- sidered in the asylum state); Drew v. Thaw (1914) 235 U.S. 432, 439-440 (insanity at the time of the alleged offense may not be considered in the asylum state); Strassheim v. Daily (1911) 221 U.S. 280, 283, 286 (sufficiency of evidence to sup- port criminal charge may not be considered in the asylum state); Marbles v. Creecy (1909) 215 U.S. 63, 69 (fear for Life or claimed inability to receive fair trial may not be considered in the asylum state); Pierce v. Creecy, supra, 210 U.S. 387 (technical sufficiency of indictment may not be considered in the asylum state); Pearce v. Texas (1894) 155 U.S. 311 (con- stitutionality of the laws of the demanding state may not be adjudicated by the asylum state); Lascelles v. Georgia (1893) 148 19. U.S. 537, 544-545 (potential danger to the fugitive may not be considered in the asylum state); Commonwealth of Kentucky v. Dennison, supra, 24 How. 66 (nature of the crime charged is irrelevant).) The cases noted above demonstrate the limitations on the jurisdiction of the courts in any "asylum" or "sending" state. The need for such Limitations is as great today as it was when the Extra- dition Clause was adopted. Modern com- munication and transportation enhance both the likelihood of flight across state lines and the likelihood of the eventual apprehension of such fugitives. Increased transportation costs and economic pressures on governments have increased rather than diminished the need for mutual support among the states in the area of interstate extradition. In the present case, the Governor 20. of the State of Arkansas has submitted a demand for the extradition of James Dean Walker, and has supplied proof that Walker was convictedin that state of murder in the first degree, was sentenced to prison for the remainder of his natural life, and is currently charged with escaping from the custody of the Arkansas Depart- ment of Corrections. The California Governor has honored that demand and has issued a warrant for the arrest and rendi- tion of Mr. Walker. Walker has not denied that the extradition documents are in order, that he is charged with and con- victed of crimes in Arkansas, that he is the person named in the request for extra- dition, or that he is a fugitive from justice. Therefore, he has presented no issue over which any court within the State of California has jurisdiction. Consequently, the order of the California 21. Supreme Court prohibiting execution of the Governor's warrant and directing that a hearing be held to test the con- stitutionality of Arkansas' prisons is in excess of the court's jurisdiction and must be set aside. 22. CONCLUS ION For the foregoing reasons, it is respectfully requested that the instant application for writ of certiorari be granted. Respectfully submitted, GEORGE DEUKMEJIAN Attorney General ROBERT H. PHILIBOSIAN Chief Assistant Attorney General Criminal Division ARNOLD O. OVEROYE Assistant Attorney General GREGORY W. BAUGHER Deputy Attorney General Attorneys for Petitioner GWB:hb 6-17-80 80YS0003 23 APPENDIX A Crim. No. 21422 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA IN BANK In Re Walker on Habeas Corpus. | Supreme Court Filed April 9, 1980 G. E. BISHEL, Clerk Deputy The Sheriff of the County of El Dorado is ordered to show cause before the Superior Court of El Dorado County with directions to that court to conduct hearings to determine if the peniten- tiary in which Arkansas seeks to confine petitioner is presently operated in conformance with the Eighth Amendment of the United States Constitution and there- after decide the petition on its merits. The written return shall be served and filed on or before April 21, 1980. Pending final determination of this proceeding execution of the Governor's Warrant of Extradition is stayed, and the Sheriff of the County of El Dorado is directed not to release petitioner into the custody of any agent of the State of Arkansas. _BIRD ee Chief Justice __.___ MOSK Justice ____ MANUEL Justice ___NEWMAN Justice ~ a eee"“Justice | ~~“Justice Justice | APPENDIX B Crim. No. 21422 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA IN BANK In Re Walker On Habeas Corpus. Petition for rehearing and for stay is denied. Clark, J., and Richardson, J., are of the opinion that the petition should be granted. BIRD Chief Justice I, Ge Ee. BISHEL, Clerk of the Supreme Court of the State of California, do hereby certify that the preceding is a true copy of an order of this Court, as shown by the records of my office. Witness my hand and the seal of the Court, this 17th day of April A.D., 19 80 Clerk, By J. Rossi Deputy Clerk APPENDIX c UNITED STATES CONSTITUTION, ARTICLE IV, Section 2, Clause 2 "A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime." UNITED STATES CODE 18 U.S.C. § 3182 "Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such per- son has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive l. authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of arrest, the prisoner may be discharged." CALIFORNIA PENAL CODE "§ 1548.1 Governor; duty to cause arrest and delivery "Subject to the provisions of this chapter, the Constitution of the United States, and the laws of the United States, it is the duty of the Governor of this State to have arrested and delivered up to the executive authority of any other State any person charged in that State with treason, felony, or Other crime, who has fled from justice and is found in this State." CALIFORNIA PENAL CODE "§ 1548.2 Demand for extradition; form and contents; documents to accompany demand; charge of crime; authentication "No demand for the extradition of a person charged with crime in another State shall be recognized by the Governor unless it is in writing alleging that the accused was present in the demanding State at the time of the commission of the alleged crime, and that thereafter he fled from that State. Such demand shall be accompanied by a copy of an indictment found or by information or by a copy of an affidavit made before a magistrate in the demanding State to- gether with a copy of any warrant which was issued thereon; or such demand shall be accompanied by a copy of a judgment of conviction or of a sentence imposed l. in execution thereof, together with a statement by the executive authority of the demanding State that the person claimed has escaped from confinement or has violated the terms of his bail, probation or parole. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that State; and the copy of indictment, information, affidavit, judgment of conviction or sentence must be certified as authentic by the executive authority making the demand." APPENDIX D SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF EL DORADO Date February 27, 1980 Court met at 9:00 a.m. Dept. No. l PRESENT: Hon. CHAS. F. FOGERTY, Judge Linda English, Reporter June L. Wills, Deputy Clerk John Roseberry, Bailiff ee ee Title: In the Matter of the Application of ROBERT W. GEANDROT, Petitioner (in Behald of JAMES DEAN WALKER) for the Writ of Habeas Corpus Counsel: Appearing: RONALD TEPPER, District Attorney, for The People PAUL GERVAIS of Gervais & Geandrot for Petitioner Nature of Proceedings Action No. 35142 PETITION FOR WRIT OF HABEAS CORPUS (From 2/21/80) (cont'd. ) Petitioner present; It is Ordered that the Writ applied for is denied on the basis of lack of jurisdiction to entertain the merits of the case. It is further Ordered that the application for a Writ of Habeas Corpus Or other like remedy in the Federal Courts, the petitioner shall be allowed until 3/10/80 to apply for said Writ or Writs and pending said date, it is Ordered that JAMES DEAN WALKER be re- tained in custody of respondent until further Order of the Court of competent jurisdiction. ce: District Attorney Gervais & Geandrot, P. O. Box 1356, South Lake Tahoe, Ca. 95705 APPENDIX E IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA IN AND FOR THE THIRD APPELLATE DISTRICT 3 Crim. 10729 In re JAMES DEAN WALKER, on Habeas Corpus By the Court: The petition for writ of habeas corpus is denied. Dated: March 6, 1980. PUGLIA, P. J. F ILE D MAR - 6 1980 Court of Appeal-Third District Wilfried J. Kramer, Clerk By Deputy APPENDIX F FILED Mar 12, 1980 Clerk, U.S. District Court Eastern District of California By Jo Le IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA -=--00000--=-=- JAMES DEAN WALKER, Petitioner, CIVIL NO. VS. RICHARD PACILEO, S-80-164 LKK Sheriff, et al., Respondents. ) ) ) ) ) ) ) ) ) ) ) MEMORANDUM Petitioner, an inmate of El Dorado County Jail is proceeding with an appli- cation for a writ of habeas corpus, seeking to challenge his imminent extra- dition to the State of Arkansas, on the grounds that returning petitioner to l. Arkansas would be returning him to a penal system which has been declared to be in violation of the Eighth Amendment's proscription against cruel and unusual punishment and that petitioner's life would be in jeopardy, not only because of the generally brutal conditions but also because he received threats from prison officials prior to his escape. Petitioner has also requested a stay of extradition pending the court's deter- mination of the merits of petitioner's application. A hearing was held on the latter request on March 7, 1980, with petitioner represented by Robert Geandrot and Paul Gervais and with the State of Arkansas informally represented by Robert Jibson, Deputy Attorney General for the State of California. After hearing argument in this case 2. and after reading and considering the application for a writ of habeas corpus, the exhibits, and the memorandum of points and authorities, this court denied the request for the stay. This memorandum is a memorialization of the decision rendered from the bench on March 7, 1980. The court treated the request for a stay as one for a temporary restraining order or for a preliminary injunction. This being so, the court examined the petitioner's likelihood of success on the merits and the possible irreparable injury. Finding that there was little possibility that the court would reach the merits, however, this court denied the motion for a stay. See City of Anaheim v. Kleppe, 590 F.2d 285, 288 n.4 (9th Cir. 1978); Benda v. 3. Grand Lodge of Int'l Ass'n, 584 F.2d 308, 315 (9th Cir. 1978). It seems unlikely that the court would ever reach a determination on the merits because it appears that peti- tioner has not exhausted his state remedies. His application shows that he sought a writ of habeas corpus from the El Dorado County Superior Court and that, when this was denied, with a stay of extradition granted to allow him to seek other review, he proceeded to the California District Court of Appeal, Third Appellate District. Counsel was informed by telephone that his applica- tion for a writ of habeas corpus had been denied by that court and that no stay was granted to allow him to seek further review. Petitioner did not present his application for a writ of 4. habeas corpus to the California Supreme Court; rather, he filed an application in this court on March 7, 1980. The exhaustion of state remedies is a prerequisite to the consideration of each claim sought to be presented in federal habeas corpus proceedings. See Pitchess v. Davis, 421 U.S. 482 (1975); Picard v. Connor, 404 U.S. 270 (1971); 28 U.S.C. § 2254(b). State remedies have not been exhausted uniess the petitioner's federal claims have been fairly presented to the state courts and the state's highest court has con- sidered the claims on their merits. See Carothers v. Rhay, 594 F.2d 225 (9th Cir. 1979). This exhaustion re- quirement has been held to be applicable to interstate extradition proceedings. See Giles v. Merrill, 322 F.2d 786, 5. 787 (10th Cir. 1963); Tickle v. Summers, 270 F.2d 848, 850 (4th Cir. 1959); Garrison v. Smith, 413 F.Supp. 747, 751 (N.D. Miss. 1976) Sutherland v. Love, 359 F.Supp. 983, 986 (E.D. Ark. 1973). Petitioner's allegations show that he has not applied to the California Supreme Court for a writ of habeas corpus and that, therefore, he has not exhausted state remedies. Petitioner argues that the exhaus- tion requirement attaches only to appli- cations for writs brought pursuant to 28 U.S.C. § 2254. This requirement does not apply, he contends, to writs sought under 28 U.S.C. § 2241(c)(1), which provides in part, that "the Writ of Habeas Corpus shall not extend to a prisoner unless he is in custody under or by color of the authority of the 6. United States. ...%2/ Petitioner asserts that he is in custody by the color of 1/ 28 U.S.C. § 2241(c) provides: The writ of habeas corpus shall not extend to a prisoner unless-- (1) He is in custody under or by color of the authority of the United States Or is committed for trial before some court thereof; or (2) He is in custody for an act done or omitted in pursuance of an Act of Con- gress, Or an order, process, judgment or decree of a court or judge of the United States; or (3) He is in custody in violation of the Constitution or laws or treaties of the United States; or (4) He, being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privi- lege, protection, or exemption claimed under the commission, order or action of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nationa; or (5) It is necessary to bring him into court to testify or for trial. (continued) 7. the authority of the United States be- cause it is the extradition clause of the United States Constitution, Art. IV, § 2, and the implementing federal Statutes, see 18 U.S.C. § 3181 et seg., which provide the authority for the states to issue warrants of extradition. Even if an application for a writ of habeas corpus challenging extradition is properly brought under 28 U.S.C. § 2441 rather than under 28 U.S.C. § 2254, a question that the court does not decide, Footnote 1 continued: 28 U.S.C. § 2254(a) provides: The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 8. the exhaustion requirement nevertheless applies. In Dye v. Johnson, 338 U.S. 864 (1949), the Supreme Court, in a per curiam opinion, reversed a decision of the Court of Appeals for the Third Circuit, which had held that the exhaus- tion requirement did not apply to a habeas proceeding challenging extradition, which had been brought pursuant to the predecessor statute to 28 U.S.C. § 2241. See Johnson v. Dye, 175 F.2d 250, 253 (3d Cir. 1949). As its basis for reversal, the Supreme Court cited Ex Parte Hawk, 321 U.S. 114 (1944), a case detailing the exhaustion requirement in habeas corpus proceedings. See also Garrison v. Smith, supra. No matter what the statutory basis for the instant petition, therefore, petitioner is re- quired to exhaust his state remedies. 9. Petitioner also argues that if § 2254 is found to govern, subsection b of that statute controls the case and excuses his failure to exhaust state remedies. That provision states that state remedies need not be exhausted if there is an “absence of available state corrective process or existence of cir- cumstances that render such process ineffective to protect the rights of petitioner." Petitioner contends that the extreme time pressure in this case renders the state proceedings ineffective to protect his rights. Because the Dis- trict Court of Appeal, Third Appellate District, denied his application for a writ without a stay, petitioner asserts that he could not risk petitioning the California Supreme Court for fear that he would be extradited and thus lose his 10. remedy, Should that court decline to grant a stay or the petition for a writ. Petitioner cannot claim that the state remedies are ineffective since he has not sought to utilize them. See Fleming v. Klinger, 363 F.2d 378, 379 (9th Cir. 1966); Pate v. Wilson, 348 &.2d 900, 901 (9th Cir. 1965); Hudgins v. Circuit Court of Cheasapeake, 294 F. Supp. 258, 260 (E.D. Va. 1968). It is as possible that the state court would enter a stay of extradition or grant relief as it is that the state court would not grant a stay or the petition for a writ. Petitioner's fear that the latter possibility will come to pass does not render the state processes in- effective to protect his rights. See Fleming v. Klinger, supra. Thus, petitioner has not justified his failure ll. to exhaust state remedies. The court is mindful that the exhaustion requirement is a matter of comity and is not a limitation on the power or jurisdiction of a district court to entertain an application for a writ of habeas corpus. See Picard v. Connor, supra, at 275; Harris v. Superior Court, 500 F.2d 1124, 1127 (9th Cir. 1974); cert. den., 420 U.S. 973 (1975). Comity requires that the orderly administration of justice in a state court is not to be interfered with, except in rare cases which present cir- cumstances of peculiar urgency. See United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 17 (1925); Macomber v. Gladden, 304 F.2d 487, 490 (9th Cir. 1962); Wisconsin Potowatomies v. Wilsey, 377 F.Supp. 1153, 1156 (M.D. Fla. 1974). 12. Federal courts should not exercise their power to consider a petition for a writ of habeas corpus except in "‘'cases of urgency, involving the authority and operations of the General Government, or the obligations of this country to, or its relations with foreign nations.'" Id., quoting Ex Parte Royall, 117 U.S. 241 (1886) see also, United States ex rel. Kennedy v. Tyler, supra; Petition of Brabson, 167 F.Supp. 619, 621 (S.D.N.¥. 1958).2/ Despite the seriousness of petitioner's allegations, it does not appear that the circumstances 2/ i Petitioner's reliance on Thomas v. Teets, 205 F.2d 236 (9th Cir. 1953), is misplaced. It is true that the Court of Appeals stayed Thomas’ execution pending a decision on the merits of his application for a writ of habeas corpus, but in that case, consideration of the merits was proper because Thomas had exhausted his state remedies. Id. at 241. 13. of this case warrant the departure from the considerations of comity underlying the exhaustion requirement. In so deciding, the court notes that the state courts share the duty of protecting con- stitutional rights, see Stone v. Powell, 428 U.S. 465 (1976), so that despite the court's conviction that this is not a proper case for relaxation of the exhaus- tion requirement, petitioner is not left without a state forum in which to air his constitutional grievances. This court's denial of petitioner's request for a stay of extradition is based largely on its evaluation that the merits of the application for the writ would never be reached because of peti- tioner's failure to exhaust his state remedies. However, it is also possible that the issues raised in petitioner's 14. application perhaps are not cognizable in a district court in the asylum state. See Price v. Pitchess, 556 F.2d 926, 928 (9th Cir.), cert. den., 434 U.S. 965 (1977); United States ex rel. Tucker v. Donovan, 321 F.2d 114, 116 (2d Cir. (1963), cert. den. sub nom. Tucker v. Kross, 375 U.S. 496 (1964); cf. Sweeney v. Woodall, 344 U.S. 86 (1953); Ross v. Middlebrooks, 188 F.2d 308 (9th Cir.); cert. den., 342 U.S. 862 (1951); United States ex rel. Little v. Ciuros, 452 F. Supp. 388 (S.D. N.Y. 1978). In such a situation a stay would not be proper. A final consideration convinces the court that the issuance of a stay is not the proper course to follow. In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court, faced with defining the 15. limits of federal judicial intervention in pending state criminal cases, announced "the fundamental policy against federal interference with state criminal prosecutions." Id. at 46. Petitioner's request for a stay of extradition is a request that this court stop an already commenced state criminal proceeding. See United States ex rel. Frisbee v. Rapone, 449 F. Supp. 509, 510 (E.D. Pa. 1978). Petitioner has alleged nothing that would remove his case from the operation of the policy of equitable restraint announced in Younger. He has made no showing that the state courts are inade- guate or inhospitable forums for his claims, nor has he alleged that the current state court proceedings are being taken in bad faith or for purposes of 16. harassment. See Younger v. Harris, supra, at 53; Boyle v. Landry, 401 U.S. 77, 81 (1971). Thus, the policy of Younger suggests that a stay of extra- dition would be improper. For the reasons stated above, IT IS THEREFORE ORDERED that petitioner's request for a stay of extradition is hereby denied. DATED: March 12, 1980. MILTON L. SCHWARTZ UNITED STATES DISTRICT JUDGE 17. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2611%3A1. Public record. Not legal advice.