Amicus Curiae Brief — Rumsfeld v. Padilla

No. 03-1027

IN THE

Supreme Court of the United States

_ DONALD H. RUMSFELD,

Secretary of Defense,

Petitioner,

VS.

JOSE PADILLA and DONNA R. NEWMAN,

as Next Friend of Jose Padilla,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

KENT S. SCHEIDEGGER

Counsel of Record

- Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Phone: (916) 446-0345

Fax: (916) 446-1194

E-mail: cjlf@cjlf.org

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

in the di

prisoner, the immediate custodian, nor anyone in the

*s chain of command is

the time the petition is filed?

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TABLE OF CONTENTS

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Summary of facts and case ................0ceeceeees 2

i ei os cece cceesesececececcoees 4

eee eee coc ecessescceccccccoccess 5

I

The habeas corpus jurisdiction of the federal district courts

is and always has been territorial ................... 5

A. The history of “within their respective jurisdictions”

eee eescaneceseseececececes 5

EEE POTEET TOT TTTTT TITY 1]

1. The habeus statutes ...........0cceeeeees 11

ete ecscesecceccccecccees 14

3. The 1966 amendment .................-. 14

4. The future custody problem .............. 15

5. The loose custody problem ............... 16

Il

Long-arm statutes do not change the territorial rule of

TCT Eee eee cep eccesescocecccocesces 17

EEE SESESE SE OPE PETCTTETTET TELE ET TE TE 21

(iii)

iV

TABLE OF AUTHORITIES

Cases

Ableman v. Booth, 21 How. (62 U. S.) 506, 16 L. Ed. 169

SD é4.960000866060600N0eRReRSSeNEsRSOSSEeRL 18

Ahrens v. Clark, 335 U. S. 188, 92 L. Ed. 1898,

68 S. Ct. 1443 (1948) .................. geoe MEE

Braden v. 30th Judicial Circuit Court, 410 U. S. 484,

35 L. Ed. 2d 443, 93 S. Ct. 1123 (1973) ............ 15

California v. Hodari D., 499 U. S. 621, 113 L. Ed. 2d 690,

See a Ge SP EE ocecccccccesecedouceveedes 16

Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S.

520, 124 L. Ed. 2d 472, 113 S. Ct. 2217 (1993) ...... 15

Ex parte Endo, 323 U. S. 283, 89 L. Ed. 243,

Se SEED cceccccceseceseceessoccosens 10

Ex parte Fong Yim, 134 F. 938 (SDNY 1905) .......... 9

Ex parte Gouyet, 175 F. 230 (D. Mont. 1909) ........... 9

Ex parte Graham, 10 F. Cas. 911 (No. 5,657)

Pe Cs 6escdncdeodteseudesoneseoessns 6

Ex parte Kenyon, 14 F. Cas. 353 (No. 7,720)

> Waa CUED cocnddcceccesconncectanecenes 8

Ex parte Ng Quong Ming, 135 F. 378 (SDNY 1905) ..... 9

Gherebi v. Bush, 352 F. 3d 1278 (CA9 2003) .......... 20

Harris v. Nelson, 394 U. S. 286, 22 L. Ed. 2d 281,

Be Gk CEO co ccccccsecccscecbooscececes 18

Hensley v. Municipal Court, 411 U. S. 345,

36 L. Ed. 2d 294, 93 S. Ct. 1571 (1973) ............ 16

Holmes v. Securities Investor Protection Corp.,

503 U. S. 258, 117 L. Ed. 2d 532,

ea ae 13

In re Bickley, 3 F. Cas. 332 (No. 1,387) (SDNY 1865) .... 6

In re Boles, 48 F. 75 (CA8 1891) ...............00000- y

International Shoe Co. v. Washington, 326 U. S. 310,

90 L. Ed. 95, 66 S. Ct. 154 (1945) ................. 20

McGowan v. Moody, 22 App. D. C. 148 (1903) ........ 10

Nelson v. George, 399 U. S. 224, 26 L. Ed. 2d 578,

nn Gi i es 14

Padilla v. Bush, 233 F. Supp. 2d 564 (2002) .......... 2,3

Padilla v. Rumsfeld, 352 F. 3d 695

Did ideennesnennauneasal 3, 4, 17, 18, 19, 20

Peyton v. Rowe, 391 U. S. 54, 20 L. Ed. 2d 426,

ED nnn pad ccnuunedeuenensisede 15

Pitchess v. Davis, 421 U. S. 482, 44 L. Ed. 2d 317,

SE ED nc inode ddndcusdedacsensesos 19

Sanders v. Allen, 100 F. 2d 717 (CA DC 1938) ........ 10

Schlanger v. Seamans, 401 U. S. 487, 28 L. Ed. 2d 251,

Se SED dccchacancsaceenasaens 16, 17, 18

Smythe v. Fiske, 23 Wall. (90 U. S.) 374 (1874) .......... 7

Steel Co. v. Citizens for Better Environment, 523 U. S. 83,

140 L. Ed. 2d 210, 118 S. Ct. 1003 (1998) ........... 5

Strait v. Laird, 406 U. S. 341, 32 L. Ed. 2d 141,

ee CE vhdcduddadecdsdcunsaedesees 17

Tippett v. Wood, 140 F. 2d 689 (CA DC 1944) ........ 10

United States ex rel. Belardi v. Day, 50 F. 2d 816

EY SE 6 66 ch cenecccedececadécoescssnccecses 9

United States ex rel. Quinn v. Hunter, 162 F. 2d 644

ST Pn hd ccncecccndcdescceudcceceseccesoes 9

United States v. Bowen, 100 U. S. 508, 10 Otto 508,

SPU GEED chccccccccecccscsosesecssess 7

United States v. Hayman, 342 U. S. 205, 96 L. Ed. 232,

Sh PEED Webcecccccscccsescscccecsoes 14

United States v. Le Bris, 121 U. S. 278, 30 L. Ed. 946,

Fe Se SED ov eccccsdécccccccccecccssconcns 8

Wales v. Whitney, 114 U. S. 564, 29 L. Ed. 277,

PGs CED co cccccsacecccccccccccccesccs 16

United States Statutes

PG EEE Ceeccccccceceseccccosccecececes 11

Bs ie Gs OF Se ee ccccccccecccesucsoscce 4, 5, 20

BP is es Gs ENED cc cccccccedcccecesecccecceses 14

BG EE cccescccccecsedccececescesseece 12

BG ED wccceccccecéccconcessscscvceses 14

Revised Statutes §§ 751-753 ....... cc ccccccccccccees 8

Judiciary Act of 1789, § 14, ch. 20, 1 Stat. 81 ........... 6

Act of March 2, 1833, ch. 57, § 7, 4 Stat. 634 ........... 6

Act of Aug. 29, 1842, ch. 257, 5 Stat. 537.............. 6

GRE Fe ciccccccccccsccecsosccdssccccesseses 13

Vii

Pub. L. 89-590, 80 Stat. 811 (1966) .................. 14

Pub. L. 94-426, § 1, 90 Stat. 1334 (1976) ............. 16

Rules of Court

Federal Rule of Civil Procedure 4(k)(1)(A) ....... 4,17, 19

Federal Rule of Civil Procedure 60(b) ................ 19

Federal Rule of Civil Procedure 81(a)(2) ............. 18

Rules Governing Section 2254 Cases in the United States

District Courts, Rule 2(b) ... 0... cece cece cece 16

Rules Governing Section 2254 Cases in the United States

NEED ccccdcececcedusceeceseess 18

Miscellaneous

Abraham Lincoln, Message to a special session of

I BED oo cdecdeededcudedccessees 19

Advisory Committee’s Notes on Rules Governing

Section 2254 Cases in the United States District Courts,

Rule 11, 28 U.S. C., p. 479 (2000 ed.) ............. 18

Cong. Globe, 39th Cong., 2d Sess. (1867) ............ 6,7

Mayers, The Habeas Corpus Act of 1867:

The Supreme Court as Legal Historian,

Be he ee ie SL BU ED ceeseccccceecsccescses 5

W. Rehnquist, All the Laws But One: Civil Liberties in

WEED ceccevecncedccccceccoeseceecess 19

IN THE

Supreme Court of the United States

~

DONALD H. RUMSFELD,

Secretary of Defense,

Petitioner,

VS.

JOSE PADILLA and DONNA R. NEWMAN,

as Next Friend of Jose Padilla,

Respondents.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a non-

profit California corporation organized to participate in

‘itigation relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the constitutional protec-

tion of the accused into balance with the rights of the victim

and of society to rapid, efficient, and reliable determination of

guilt and swift execution of punishment.

Although the present case is not a criminal case, it nonethe-

less involves a vicious, murderous attack on the American

1. This brief was written entirely by counsel for amicus, as listed on the

cover, and not by counsel for any party. No ontside contributions were

made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

people and a continuing conspiracy to commit additional and

even more devastating attacks. Facilitation of such attacks by

releasing the conspirators is therefore contrary to interests of

the law-abiding public that CJLF was formed to protect.

Ir addition, the procedural mechanism used to accomplish

this result, the writ of habeas corpus, is an area of law in which

CJLF has developed substantial expertise. We have partici-

pated in most of this Court’s major cases in this area in the last

15 years, including, among others, Teague v. Lane, 489 U. S.

288 (1989), McCleskey v. Zant, 499 U.S. 467 (1991), Felker v.

Turpin, 518 U.S. 651 (1996), and Williams v. Taylor, 529 U.S.

362 (2000). We believe our expertise in this field will be

helpful to the Court. As we are cognizant of this Court’s Rule

37.1(a) and aware that many other amici, as well as the parties,

will thoroughly brief the merits, this brief is limited to the

question of habeas jurisdiction.

SUMMARY OF FACTS AND CASE

Al Qaeda, a terrorist organization, has for many years

sought to injure the United States and its people by any means

within its power. The most infamous such attack was the

airplane hijackings of September 11, 2001, which destroyed the

World Trade Center, damaged the Pentagon, and killed over

3,000 people in those buildings and on the airplanes. See

Padilla v. Bush, 233 F. Supp. 2d 564, 570 (2002).

Al Qaeda is not finished, but is “committed to and involved

in planning further attacks.” Jd., at 571. The government

believes that the habeas petitioner (respondent in this Court),

Jose Padilla, also known as Abdullah al Muhajir, plotted with

al Qaeda “to build and detonate a ‘radiological dispersal device’

(also known as a ‘dirty bomb’) within the United States... .”

App. to Pet. for Cert. 169a-170a.

Padilla was arrested in Chicago on a material witness

warrant issued by the United States District Court for the

_ —_——— - ——, - =

Southern District of New York. See 233 F. Supp. 2d, at 568-

569. He was removed from Chicago to New York, in the

custody of the Justice Department, and counsel was appointed

for him. /d., at 571.

While a motion to vacate the warrant was pending, the

President designated Padilla an enemy combatant and directed

the Secretary of Defense to take him into custody. /bid. He is

presently in the Consolidated Naval Brig in Charleston, South

Carolina, in the custody of the officer in charge there, Com-

mander M.A. Marr. See id., at 569.

On June 11, 2002, after Padilla’s removal to South Caroli-

na, his attorney filed the instant habeas corpus petition in the

Southern District of New York. The District Court held that

Padilla’s attorney had standing to file the petition on his behalf.

Id., at 578. The court granted the government’s motion to

dismiss President Bush, finding he was not a proper party. Jd.,

at 578, 582. The court also dismissed Commander Marr. /d.,

at 583. However, the court held that Secretary of Defense

Rumsfeld was a proper party. Jd., at 582.

The District Court held, based on Second Circuit precedent

and its interpretation of Supreme Court precedent, that it had

territorial jurisdiction of the case simply because the Secretary

of Defense was within the reach of New York’s “long-arm”

statute. /d., at 583-587.

On the merits, the District Court determined that the

President has the authority to detain enemy combatants and that

the lawfulness of detention in Padilla’s case would be deter-

mined on the basis of “whether the President had some evi-

dence te support his finding that Padilla was an enemy combat-

ant....” /d., at 610.

Both parties appealed. See Padilla v. Rumsfeld, 352 F. 3d

695, 702 (CA2 2003) (certification by District Court; grant of

interlocutory appeal by Court of Appeals). ‘The Court of

Appeals affirmed on the standing, proper respondent, and

jurisdictional issues. /d., at 702-710. On the merits, the Court

4

of Appeals remanded with instructions to order Padilla released

from military custody within 30 days. /d., at 724. Judge

Wesley dissented from this holding. /d., at 726. This Court

granted certiorari on February 20, 2004.

SUMMARY OF ARGUMENT

The phrase “within their respective jurisdictions” in 28

U. S. C. §2241(a) places a territorial limitation on the habeas

jurisdiction of United States District Court. The legislative and

judicial history of this phrase had given it a settled meaning at

the time Congress enacted the present section in 1948. The

authorities are uniform to that time that when neither the

petitioner nor the custodian is physically within the district, the

district court has no habeas jurisdiction.

Developments since 1948 do not require, or even permit, a

different result. Congress has made exceptions to the territorial

rule but kept the basic rule intact. Decisions of this Court

permitting habeas for future custody or minimally restrictive

“custody” have required adjustments but have not abandoned

the basic rule of territorial limitation.

Rules expanding extraterritorial jurisdiction in ordinary

civil cases do not apply to habeas corpus. This includes Federal

Rule of Civil Procedure 4(k)(1)(A), relied on by the Court of

Appeals in this case. Under Harris v. Nelson and other cases,

civil rules do not apply to habeas corpus where they are

inconsistent with the special rules and statutes governing that

unique proceeding. Where civil rules contradict the habeas

statute’s express limitation on the territorial extent of jurisdic-

tion, the civil rules do not apply.

ARGUMENT

“Writs of habeas corpus may be granted by the Supreme

Court, any justice thereof, the district courts and any circuit

judge within their respective jurisdictions.” 28 U. S. C.

§ 2241(a) (emphasis added). The question of jurisdiction must

be answered first. See Steel Co. v. Citizens for Better Environ-

ment, 523 U.S. 83, 94-95 (1998). If the answer is negative, the

court should not decide the merits. See id., at 109-110.

I. The habeas corpus jurisdiction of the federal district

courts is and always has been territorial.

A. The history of “within their respective jurisdictions” to

1948.

The history of Congress’s expansion of the substantive

scope of federal habeas from the Founding through Reconstruc-

tion has been traced many times. See, e.g, Mayers, The

Habeas Corpus Act of 1867: The Supreme Court as Legal

Historian, 33 U. Chi. L. Rev. 31, 33-35 (1965). The present

case requires an examination of a different aspect of these

statutes, i.e., their territorial limitations.

The First Congress enacted,

“That all the before-mentioned courts of the United States,

‘shall have power to issue writs of scire facias, habeas

corpus. and all other writs not specially provided for by

statute, which may be necessary for the exercise of their

respective jurisdictions, and agreeable to the principles and

usages of law. And that either of the justices of the su-

preme court, as well as judges of the district courts, shall

have power to grant writs of habeas corpus for the purpose

of inquiry into the cause of commitment.—Provided, That

writs of habeas corpus shall in no case extend to prisoners

in gaol, unless where they are in custody, under or by colour

of the authority of the United States, or are committed for

trial before some court of the same, or are necessary to be

brought into court to testify.” Judiciary Act of 1789, § 14,

ch. 20, 1 Stat. 81-82.

The second sentence placed no express territorial limitation

on the district courts, probably because it was understood.

“This division and appointment of particular courts, for each

district, necessarily confines the jurisdiction of the local

tribunals, within the bounds of the respective districts, within

which they are directed to be holden.” Ex parte Graham, 10

F. Cas. 911, 912 (No. 5,657) (CC ED Pa. 1818).

On facts very similar to the present case, habeas relief was

denied for lack of jurisdiction in Jn re Bickley, 3 F. Cas. 332

(No. 1,387) (SDNY 1865). Bickley had been in military

custody in New York, but he had been moved to Massachusetts

before the application was filed. See id., at 333. Neither

Bickley nor the immediate custodian was in New York, but the

named respondent, the military commander for the entire

region, was. See ibid. The court held that it had no jurisdic-

tion. See id., at 334.

In 1833, Congress added habeas protection for persons held

in state custody for acts enforcing federal law. Act of March 2,

1833, ch. 57, § 7, 4 Stat. 634-635. Again, no territorial limita-

tion was expressly stated, or needed to be.

In 1842, Congress added protection for foreigners claiming

to have acted under rights conferred by international law. “That

either of the justices of the Supreme Court of the United States,

or judge of any district court of the United States, in which a

prisoner is confined, in addition to the authority already

conferred by law, shall have power to grant writs of habeas

corpus... .” Act of Aug. 29, 1842, ch. 257, 5 Stat. 539

(emphasis added). By this time it was apparently thought

necessary to explicitly state the territorial limit.

The largest expansion of habeas jurisdiction is the Recon-

struction statute passed in 1867. When the bill reached the

Senate, Senator Johnson objected that its broad language would

give every district court nationwide jurisdiction. Cong. Globe,

et

_ — ->-—

39th Cong., 2d Sess. 730. “I do not see why the authority

should not be limited to the circuit judge of the circuit where

the party is imprisoned... .” Jbid. Senator Trumbull, the bill’s

sponsor, doubted the bill was susceptible of the construction

Senator Johnson gave it, but agreed to examine the matter

further.

A few days later the bill came up again. Senator Trumbull

noted the previous objection that the bill might be misinter-

preted such that “a judge in one part of the Union would be

authorized to issue a writ of habeas corpus to bring before him

a person confined in another and a remote part of the Union.”

Id., at 790. To preclude this misinterpretation, Senator Trum-

bull proposed an amendment to add the words “within their

respective jurisdictions.” Jbid. Senator Johnson was satisfied

that this language “removes [the] difficulty.” Jbid.

These are two possible interpretations of these various acts.

Either Congress intended the territorial scope of habeas

jurisdiction to vary among the substantive grounds, or Congress

understood all four acts to be equivalent in this regard. That is,

“within their respective jurisdictions” in the 1867 act means

substantially the same thing as the “in which a prisoner is

confined” clause in the 1842 act, and both are consistent with

the implicit limitation that was understood in the first two acts.

The second interpretation seems the more plausible and it was

soon confirmed by Congress itself.

In 1874, Congress enacted the Revised Statutes. “The

Revised Statutes must be treated as the legislative declaration

of the statute law on the subjects which they embrace, on the

first day of December, 1873.” United States v. Bowen, 100

U. S. 508, 513 (1880). “It was the declared purpose of Con-

gress to collate all the statutes as they were at that date, and not

to make any change in their provisions.” Smythe v. Fiske, 23

Wall. (90 U. S.) 374, 382 (1874). The pertinent parts of the

four pre-codification habeas statutes were combined into these

sections:

Ҥ751. The Supreme Court and the circuit and district

courts shall have power to issue writs of habeas corpus.

Ҥ 752. The several justices and judges of the said courts,

within their respective jurisdictions, shall have power to

grant writs of habeas corpus for the purpose of an inquiry

into the cause of restraint of liberty.

Ҥ 753. The writ of habeas corpus shall in no case extend

to a prisoner in jail, unless where he is in custody under or

by color of the authority of the United States, or is commit-

ted for trial before some court thereof; or is in custody for

an act done or omitted in pursuance of a law of the United

States, or of an order, process, or decree of a court or judge

thereof; or is in custody in violation of the Constitution or

of a law or treaty of the United States; or, being a subject or

citizen of a foreign state, and domiciled therein, is in

custody for an act done or omitted under any alleged right,

title, authority, privilege, protection, or exemption claimed

under the commission, or order, or sanction of any foreign

state, or under color thereof, the validity and effect whereof

depend upon the law of nations; or unless it is necessary to

bring the prisoner into court to testify.”

The limitation “within their respective jurisdictions” in

§ 752, taken from the 1867 act, applies to all the substantive

grounds, which are combined in § 753. If there is any ambigu-

ity in the phrase, courts look to the original statute and give it

the same meaning, “unless a contrary intention is plainly

manifested.” United States v. Le Bris, 121 U. S. 278, 280

(1887). Since the phrase applies to the substantive ground from

the 1842 act, it should have the same meaning as that act’s

limitation to the district “in which a prisoner is confined” if that

is a plausible interpretation, which it certainly is.

The phrase “within their respective jurisdictions” was

uniformly understood to be a territorial limitation on habeas

jurisdiction until the next major recodification in 1948. See Ex

parte Kenyon, 14 F. Cas. 353, 354 (No. 7,720) (CC WD Ark.

- —»~<—- ow. -—

1878) (“This, of course, has reference to their territorial jurisdic-

tion”). In re Boles, 48 F. 75 (CA8 1891) involved a habeas

petition by a prisoner convicted in a territorial court in Okla-

homa, which was then within the Eighth Circuit, but who was

confined outside the circuit. See id., at 75-76. The court held,

“we cannot issue the writ in question to be served in another

circuit... .” Jd., at 76. In Ex parte Gouyet, 175 F. 230 (D.

Mont. 1909), the court understood the statutory phrase to be an

express restriction “to the territorial jurisdiction of the court

where the application is made,” id., at 233, denying it jurisdic-

tion to grant habeas corpus for a prisoner convicted in that court

but confined elsewhere.

In cases where the prisoner and the custodian are both

outside the territorial jurisdiction, the cases through 1948 are

uniform that there is no jurisdiction. See, e.g., United States ex

rel. Belardi v. Day, 50 F. 2d 816,°817 (CA3 1931); United

States ex rel. Quinn v. Hunter, 162 F. 2d 644, 648-649 (CA7

1947) (temporary presence of both in court was insufficient).

Ahrens v. Clark, 335 U.S. 188 (1948) was decided nearly

contemporaneously with the enactment of the overhauled Title

28, obviously too late to have had any impact on Congress’s

drafting of the new habeas law. Even so, the cases cited in it

give us a view of what the phrase “within their respective

jurisdiction” was understood to mean when Congress decided

to reenact it.

Ahrens cites Bickley, Boles, Gouyet and other cases for the

“general view” of strict territoriality. See id., at 190. Two

cases are cited with a “but see” signal. See id., at 190,n. 1. Ex

parte Fong Yim, 134 F. 938 (SDNY 1905) is an immigration

case. Two children were detained in the Northern District. The

immigration officer was in the Southern District, admitted the

children were in his custody, and stipulated that they need not

be brought into court. The court’s decision on jurisdiction is

based on this admission and stipulation, see id., at 939, imply-

ing a kind of estoppel. Ex parte Ng Quong Ming, 135 F. 378,

10

379 (SDNY 1905) is another decision by the same judge onthe ~

same ground.

Two District of Columbia cases are cited with a “cf.” signal.

Ahrens, 335 U. S., at 190. Sanders v. Allen, 100 F.2d 717 (CA

DC 1938) was a habeas petition by a prisoner convicted in a

D.C. court and confined in the “District workhouse at Occo-

quan,” Virginia. /d., at 718. The court held that in these

circumstances the presence in the District of Columbia of the

correctional officials was sufficient to give jurisdiction. See id.,

at 719. However, the court reiterated its adherence to the

holding of McGowan v. Moody, 22 App. D. C. 148, 163 (1903),

that the presence in the district of the Secretary of the Navy was

insufficient to confer jurisdiction to hear a habeas petition by a

prisoner in Guam. See Sanders, supra, at 720. Tippett v.

Wood, 140 F. 2d 689 (CA DC 1944) is not a habeas case at all,

but a mandamus action. Jurisdiction is discussed only in the

dissent. See id., at 693 (Arnold, J., dissenting).

In Ex parte Endo, 323 U. S. 283, 305 (1944), the Court

specifically declined to reach the question of whether presence

of the person detained within the district at the time of filing is

a prerequisite to jurisdiction. The case holds only that the

petitioner’s removal to another district after filing does not

defeat the jurisdiction. See id., at 306. The statements in Endo

regarding a respondent being within reach of the court’s process

relate to the actual granting of relief, not the initial acquisition

of jurisdiction. See id., at 306-307.

In short, at the time of Ahrens, which is also the time of

enactment of 28 U.S. C. § 2241, there was universal agreement

in the cases that habeas corpus jurisdiction was subject to

territorial limits. The majority view was that confinement of

the prisoner in the district was a jurisdictional requirement. A

handful of cases held that presence of the custodian was

sufficient, although some of these seem to be based on a waiver

or estoppel theory.

oma

Se ee

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11

In Ahrens, the Court interpreted the phrase “within their

respective jurisdictions” in accordance with the majority view,

i.e., strictly requiring confinement within the district as a

nonwaivable jurisdictional prerequisite. See 335 U. S., at 190,

193. The dissent agreed that these words did impose a territo-

rial limitation on the jurisdiction, but thought the presence of

the custodian within the jurisdiction was sufficient. See id., at

202-203, 206 (Rutledge, J., dissenting). The dissent did not

question the correctness of the cases denying jurisdiction

“where both the custodian and his prisoner are outside the

territorial jurisdiction of the court... .” Jd., at 203. Indeed,

the dissent asserted “it is with that class alone, in my opinion,

that the phrase ‘within their respective jurisdictions’ sought to

deal.” /d., at 204.

On the eve of the enactment of § 2241, then, this Court was

unanimous on the meaning of the phrase “within their respec-

tive jurisdictions” as applied to cases such as the present case.

When neither the custodian nor the place of confinement is

within a district court’s district, that court has no habeas

jurisdiction.

B. The 1948 Code.

1. The habeas statutes.

From the wording of the 1948 revised habeas statutes, there

can be little doubt that Congress intended to preserve the rule

of territorial habeas jurisdiction. As originally enacted (and

“cleaned up” the following year), the first two sections of the

habeas chapter read as follows:

Ҥ 2241. Power to grant writ

“(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts and

any circuit judge within their respective jurisdictions. The

order of a circuit judge shall be entered in the records of the

12

district court of the district wherein the restraint com-

plained of is had.

“(b) The Supreme Court, any justice thereof, and any

circuit judge may decline to entertain an application for a

writ of habeas corpus and may transfer the application for

hearing and determination to the district court having

jurisdiction to entertain it.

“(c) 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 Congress, 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 Consti-

tution 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,

privilege, protection, or exemption claimed under

the commission, order or sanction of any foreign

state, or under color thereof, the validity and effect

of which depend upon the law of nations; or

“(5) It is necessary to bring him into court to

testify or for trial.

Ҥ 2242. Application

“Application for a writ of habeas corpus shall be in

writing signed and verified by the person for whose relief

it is intended or by someone acting in his behalf.

“It shall allege the facts concerning the applicant’s

commitment or detention, the name of the person who has

ee

13

custody over him and by virtue of what claim or authority,

if known.

“It may be amended or supplemented as provided in the

rules of procedure applicable to civil actions.

“If addressed to the Supreme Court, a justice thereof or

a circuit judge it shall state the reasons for not making

application fo the district court of the district in which the

applicant is held.” 62 Stat. 964-965 (emphasis added); 63

Stat. 105 (adding commas in § 2241(b)).

This wording strongly implies the traditional territorial

understanding of Ahrens. The phrase “within their respective

jurisdictions” was uniformly understood to be a territorial

limitation, with only minor differences not pertinent here

remaining unsettled. See Part I-A, supra. Congress “used the

same words, and we can only assume it intended them to have

the same meaning that courts had already given them.” Holmes

v. Securities Investor Protection Corporation, 503 U. S. 258,

268 (1992).

The second sentence provides for the order of a circuit

judge to be entered “in the records of the district court of the

district where the restraint complained of is had.” It would be

an odd provision to enter the order of a circuit judge in a district

court of another circuit.

Subdivision (b) uses the definite article when permitting

transfer to “the district court having jurisdiction to entertain it.”

This implies that Congress believed there was only one. The

last sentence of § 2242 eliminates any ambiguity as to which

district that was. An application to an appellate court or judge

must explain why the application is not made “to the district

court of the district in which the applicant is held.” It would be

nonsensical to require such an explanation unless that is the

district court with jurisdiction.

The limitation of habeas corpus to the territory of the

district has created some practical problems. As these problems

have arisen, Congress and this Court have created alternatives

14

or ways around the problems but have never abandoned the

basic rule of territorial jurisdiction. The manner in which these

problems have been resolved indicates that territorial jurisdic-

tion remains the rule until Congress decides to change it, and

then only to the extent that Congress changes it.

2. Section 2255.

The most obvious and frequent problem was the use of

habeas corpus as a collateral attack on criminal judgments by

federal prisoners. The problems are discussed at length in

United States v. Hayman, 342 U. S. 205, 210-214 (1952).

Congress could have altered the territorial rule for habeas in

this situation, but it chose instead to create an entirely new

procedure in 28 U. S. C. §2255. “This is not a habeas corpus

proceeding.” Hayman, supra, at 220. Hence, the territorial

limitation on habeas recognized in Ahrens is simply inapplica-

ble. The fact that Congress would go to the lengths of creating

an entirely new non-habeas procedure rather than simply

changing the territorial limitation for habeas indicates that

Congress was committed to retaining the territorial limitation

for habeas as a generalrule.

3. The 1966 amendment.

Under the 1948 act, state prisoners still had to file in the

district of confinement, even if the district of conviction was

elsewhere. In large states with multiple districts, this presented

a problem similar to that for federal prisoners before § 2255. In

1966, Coagress made the first outright exception to the rule of

territorial jurisdiction, adding § 2241(d) to give the district of

conviction concurrent jurisdiction. Pub. L. 89-590, 80 Stat.

811. “The legislative history . . . suggests that Congress may

have intended to endorse and preserve the territorial rule of

Ahrens to the extent that it was not altered by those amend-

ments.” Nelson v. George, 399 U.S. 224, 228, n. 5 (1970).

15

4. The future custody problem.

Additional problems were created by several decisions of

this Court expanding the definition of “custody” for the purpose

of habeas jurisdiction and expanding the available relief beyond

immediate release. Peyton v. Rowe, 391 U. S. 54, 55 (1968)

held that a defendant sentenced to concurrent terms could

attack the second sentence on habeas, even though he had not

begun to serve that sentence. Under Peyton, a grant of habeas

relief is, in effect, a declaratory judgment regarding future

custody. It may have nothing to do with the present custodian,

who may not even be an official of the same state.

The incongruity and inconvenience of litigating future

custody in a jurisdiction which has nothing to do with that

custody led to a break with the strict Ahrens rule in Braden v.

30th Judicial Circuit Court, 410 U. S. 484 (1973). See id., at

493-494 (practical difficulties). Braden adopted the view that

custodian, not the prisoner, is the focus of the words “within

their respective jurisdictions,” citing the Ahrens dissent. See

id., at 495.

There is expansive language in the Braden opinion that

could be read as going far beyond the theory of the Ahrens

dissent and abandoning the territorial limit on habeas alto-

gether, extending habeas jurisdiction wherever “long-arm”

service of process might reach. See ibid.; id., at 500. Given the

substantial contrary authority and the absence of any need fur

such a sweeping holding to decide the case, any such implica-

tion should be considered nonbinding dicta. Cf. Church of

Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 572-573

(1993) (Souter, J., concurring in part and concurring in the

judgment). The theory of the Ahrens dissent, that the presence

of the custodian (or, in this case, would-be future custodian)

within the district met the territorial requirement, is sufficient

to resolve the case and is consistent with a narrow reading of

the opinion.

16

Congress implicitly endorsed the result in Braden when it

adopted the Rules Governing Section 2254 Cases in the United

States District Courts (“Habeas Rules”). See Pub. L. 94-426,

§ 1, 90 Stat. 1334 (1976). Habeas Rule 2(b) directs that the

attorney general of the state be named a respondent in future

custody cases.

5. The loose custody problem.

Another problem results from the expansion of habeas

corpus to people who are not incarcerated, but rather in “cus-

tody” only under a very loose definition of that term. Wales v.

Whitney, 114 U. S. 564, 571-572 (1885) defined custody in

terms very similar to the present definition of “seizure.” Cf.

California v. Hodari D.,499 U.S. 621, 626 (1991). Wales was

overruled in Hensley v. Municipal Court, 411 U. S. 345, 350,

n. 8 (1973), where a defendant released on his own recogni-

zance and subject to very minimal restrictions was held to be in

custody. See id., at 354-355 (Rehnquist, J., dissenting). In

cases of minimal restraint, there is no immediate custodian in

the traditional sense of the person in charge of the institution of

confinement. The nominal custodian may be far removed from |

the location of the petitioner.

In Schlanger v. Seamans, 401 U. S. 487, 487-488 (1971),

an Air Force enlisted man assigned to Moody AFB, Georgia,

was granted “permissive temporary duty” to attend Arizona

State University at his own expense and not as part of the

ROTC program at that campus. He sought release from the

military by filing a habeas corpus petition in the District Court

in Arizona. See id., at 488. The respondents were the Secre-

tary of the Air Force, the Commander of Moody AFB, and the

Commander of the AFROTC program at ASU. The latter was

not a proper respondent, as he had no control over the peti-

tioner. See id., at 489.

The Schlanger Court noted once again that habeas jurisdic-

tion is limited by the statutory phrase “within their respective

jurisdictions.” See ibid. “The question in the instant case is

17

whether any custodian, or one in the chain of command, as well

as the person detained, must t2 in the territorial jurisdiction of

the District Court.” Ibid. (emphasis added). The answer is yes.

Id., at 490-491.

Schlanger is on point and controlling if it is still good law.

The Court of Appeals in the present case attempts to read a

distinction into the Schlanger Court’s lack of separate discus-

sion of the Secretary of the Air Force. See Padilla v. Rumsfeld,

352 F. 3d 695, 706, n. 12 (CA2 2003). The reason for lack of

a separate discussion is obvious and does not distinguish the

cases. The Court squarely held that the Secretary of the Air

Force was not “present” in Arizona for this purpose. Schlang-

er, 401 U. S., at 488-489. The question is whether this holding

survives Strait v. Laird, 406 U. S. 341 (1972).

Strait involved the unusual circums‘ance where the nominal

custodian was the commander of a records center where

petitioner had never been. See id., at 342. The petitioner was

in California, and all of his face-to-face contacts with the

military had been there. See id., at 343-344. Strait itself says

it does not “abandon Schlanger,” id., at 343, but rather distin-

guishes it based on the unusual facts of Strait. Strait stretched

the concept of presence to include a situation where the

custodian exercised continuing control in the district through

military intermediaries who were physically present in the

district. See id., at 345. There is no need to stretch it any

further, and it cannot be stretched to cover the present case

without overruling Schlanger. Strait is consistent with the

territorial rule that has governed habeas corpus from the

beginning: when neither the prisoner nor the custodian is

physically present in the district, there is no habeas jurisdiction.

II. Long-arm statutes do not change the territorial rule

of habeas corpus.

The Court of Appeals believed that jurisdiction in this case

was provided by Federal Rule of Civil Procedure 4(k)(1)(A),

18

authorizing “jurisdiction over the person of a defendant § (A)

who could be subjected to the jurisdiction of a court of general

jurisdiction in the state where the district is located ....” See

Padilla v. Rumsfeld, 352 F. 3d 695, 709 (CA2 2003). Prelimi-

narily, we question whether this rule applies even on its face.

A federal official is not subject to the jurisdiction of any state

court regarding the custody of a federal prisoner. See Ableman

v. Booth, 21 How. (62 U. S.) 506, 524 (1859). We need not

belabor this point, however, because a simpler and better

understood principle precludes the use of this rule in this

context.

Schlanger v. Seamans, 401 U. S. 487, 488 (1971) consid-

ered and rejected the proposition that rules for broadening the

venue of ordinary civil actions operate to broaden the territorial

jurisdiction in habeas corpus. See id., at 490, n. 4. “Though

habeas corpus is technically ‘civil,’ it is not automatically

subject to all the rules governing ordinary civil actions.” Jbid.

(citing Harris v. Nelson, 394 U. S. 286 (1969)). “Essentially,

the proceeding is unique.” Harris, supra, at294. As originally

promulgated, the Civil Rules had “very limited application to

habeas proceedings.” /d., at 295. Civil Rule 81(a)(2) simply

continued the application of civil rules to habeas proceedings

to the extent they had been applied before the promulgation of

the rules, but not further. /d., at 294. To the extent the Civil

Rules introduced procedural innovations, such as broad

discovery, they did not apply to habeas. See id., at 295. The

Harris Court also noted “the unsuitability of applying to habeas

corpus provisions which were drafted without reference to its

peculiar problems.” /d., at 296. Discovery as it exists in

federal civil litigation was unsuited, because it would “do

violence to the efficient and effective administration of the

Great Writ.” Jd., at 297. Habeas Rule 11 is “intended to

conform with the Supreme Court’s approach in the Harris

case.” Advisory Committee’s Notes on Rules Governing

Section 2254 Cases in the United States District Courts Rule

11,28 U.S. C., p. 479 (2000 ed.).

OE en

19

Harris was applied to Federal Rule of Civil Procedure 60(b)

in Pitchess v. Davis, 421 U. S. 482 (1975) (per curiam). A

habeas petitioner successfully obtained a new trial, but then

sought to preclude a retrial. He asked the Federal District Court

to change its judgment from a conditional to an unconditional

writ. /d., at 484-485. Under the circumstances, the basis of this

claim could not be exhausted in state court until the post-trial

appeal. See id., at 488. The Court held that Rule 60(b) could

not be used to evade the exhaustion rule. Civil Rule 81(a)(2)

precluded use of the Civil Rules in a manner contrary to the

habeas statutes. “Since the exhaustion requirement is statuto-

rily codified, even if Rule 60(b) could be read to apply to this

situation it could not alter the statutory command.” /d., at 489.

Astonishingly, the Court of Appeals simply ignored this

well-known and long-established limitation on applying civil

rules to habeas corpus. The court noted in a footnote the

government’s argument that Federal Rule of Civil Procedure

4(k)(1)(A) was “inapplicable in the habeas context,” Padilla,

352 F. 3d, at 709, n. 18, but it did not discuss or distinguish

Harris, Pitchess, or any other case in this area.

Habeas corpus cases often involve a judicial demand that

the executive release a person it considers to be extremely

dangerous. At times, it can involve the release of persons the

government believes to be a threat to its very existence. “Are

all the laws, but one, to go unexecuted, and the government

itself go to pieces, lest that one be violated?” Abraham

Lincoln, Message to a special session of Congress (July 4,

1861), quoted in W. Rehnquist, All the Laws But One: Civil

Liberties in Wartime vii (1998); see also id., at 26, 32-39

(background of Ex parte Merryman, 17 F. Cas. 144 (No. 9,487)

(CC Md. 1861)). There is no reason to believe that Congress

intended litigants to have as much leeway in choosing their

forum in such cases as it has permitted the Civil Rules to give

them in routine suits over torts and contracts. Congress’s

contrary intention is plain on the face of the statute. It retained

the limitation “within their respective jurisdictions,” which was

20

understood at the time of enactment to be a traditional territo-

rial limit.

The Court of Appeals’ interpretation, opening habeas

jurisdiction to any district where a cabinet secretary has the

minimum contacts needed to satisfy /nternational Shoe Co. v.

Washington, 326 U. S. 310 (1945), see 352 F. 3d, at 709-710,

effectively allows a federal prisoner to sue a cabinet-level

officer in nearly any district of his choice. We need not

speculate whether such an expansive view would lead to

shameless forum-shopping or whether a court would permit

such a travesty. It has already happened. In Gherebi v. Bush,

352 F. 3d 1278, 1301-1302 (CA9 2003), stay granted Bush v.

Gherebi, 124 S. Ct. 1197 (2004), the Ninth Circuit upheld

habeas jurisdiction in the Central District of California based

solely on the presence of military installations there, even

though those installations had nothing whatever to do with the

case. This holding is irreconcilable with Schlanger, which held

that the District Court for the District of Arizona had no

jurisdiction in habeas over the Secretary of the Air Force,

despite the existence of an AFROTC program at Arizona State

University, when that program had nothing to do with the

petitioner or his case. See supra, at 16-17.

Habeas corpus is a unique proceeding, governed by unique

rules. Civil rules may be used if, and only if, they are appropri-

ate to the proceeding and do not conflict with the specific

habeas rules and statutes. Rule 4(k)(1)(A) and its incorporation

of the New York long-arm statute conflict with the territorial

jurisdiction limitation of 28 U. S. C. § 2241(a). They are

therefore inapplicable.

Neither the prisoner nor the custodian was present in New

York on the day this petition was filed. They were both in

South Carolina. Jurisdiction was therefore in the District of

South Carolina and not in the Southern District of New York.

a

:

te

21

CONCLUSION

The decision of the Court of Appeals for the Second Circuit

should be reversed and the case remanded with instructions to

dismiss for lack of jurisdiction.

March, 2004

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation