364 U.S. 611 (1961), 72, Carbo v. United States

Docket Nº:No. 72
Citation:364 U.S. 611, 81 S.Ct. 338, 5 L.Ed.2d 329
Party Name:Carbo v. United States
Case Date:January 09, 1961
Court:United States Supreme Court

Page 611

364 U.S. 611 (1961)

81 S.Ct. 338, 5 L.Ed.2d 329



United States

No. 72

United States Supreme Court

Jan. 9, 1961

Argued November 16, 1960




Under 28 U.S.C. § 2241, the United States District Court for the Southern District of California had jurisdiction in the circumstances of this case to issue a writ of habeas corpus ad prosequendum directing a New York City prison official to deliver petitioner, a prisoner of that City, to California for trial on an indictment pending there in the District Court. Pp. 611-622.

(a) At common law, the term habeas corpus was a generic term, including many species of that writ and including the writ of habeas corpus ad prosequendum. Pp. 614-615.

(b) The territorial limitation in § 2241, "within their respective jurisdictions," refers to issuance of the Great Writ, habeas corpus ad subjiciendum, for an inquiry into the cause of restraint, with which the bulk of the Act is concerned, and not to writs of habeas corpus ad prosequendum. P. 619.

(c) To the extent that lower court decisions have relied upon a contrary construction of § 2241, this Court disapproves of their conclusions. P. 621.

277 F.2d 433 affirmed.

CLARK, J., lead opinion

MR. JUSTICE CLARK delivered the opinion of the Court.

The sole question in this case is whether the United States District Court for the Southern District of California has jurisdiction to issue a writ of habeas corpus ad prosequendum directing a New York City prison official to deliver petitioner, a prisoner of that City, to California

Page 612

for trial on an indictment pending in the California court.1 Both the District Court and the Court of Appeals have held that such jurisdiction does exist. 277 F.2d 433. Recognizing that the effective administration of criminal justice required our decision on the point, we granted certiorari 363 U.S. 802. We affirm the judgment.

Petitioner, one of five defendants indicted on September 22, 1959, in the District Court for the Southern District of California on charges of extortion and conspiracy,2 was arrested in Baltimore, Maryland, where he posted bond returnable to the California court. Before appearing in California pursuant to his obligation under the bond, petitioner pleaded guilty to three misdemeanor charges in New York City and was sentenced to serve a two-year term in the New York City Prison, in addition to payment of a fine. Pursuant to a writ of habeas corpus ad prosequendum issuing from the California court to the New York City prison authorities, the petitioner appeared in custody before that court, was arraigned, and pleaded not guilty to the indictment. Upon petitioner's request, the court ordered that he be returned to the New York City Prison in custody in order to obtain counsel, and that he thereafter be returned3 to California in time for trial on

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the indictment set for March 29, 1960. In order that petitioner might meet the obligation of his bond, as well as that of the latter order, the court, on March 16, 1960, again issued a writ of habeas corpus ad prosequendum to the New York City prison official directing the return of the petitioner for trial on March 29, 1960. On the same date and before it could be served, the petitioner moved to quash the writ. His sole ground of objection was that the United States District Court for the Southern District [81 S.Ct. 340] of California had no power to issue the writ to an officer located outside of its territorial limits. The contention is bottomed on the language of 28 U.S.C. § 2241 as codified in 1948.4 We have concluded that the issuance of the writ of habeas corpus ad prosequendum was within the jurisdiction of the court as authorized by the Congress in § 2241.

This is the first time this Court has undertaken a construction of the statutory authority for the issuance of writs of habeas corpus ad prosequendum since Chief Justice

Page 614

Marshall, in Ex parte Bollman, 4 Cranch 75 (1807), interpreted the language of the First Judiciary Act, 1 Stat. 81-82 (1789). It seems, therefore, both appropriate and, in our view, necessary to first trace the course followed by congressional action granting judicial power to issue writs of habeas corpus generally.

Section 14 of the First Judiciary Act gave authority to

all the . . . courts of the United States . . . 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 . . . either of the justices of the Supreme Court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an 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.

1 Stat. 81-82 (1789).

We are indeed fortunate to have the benefit of the close scrutiny to which Chief Justice John Marshall subjected § 14 in Ex parte Bollman, supra. Initially, the Chief Justice observed that,

for the meaning of the term habeas corpus, resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by written law.

4 Cranch at 93-94. Mindful perhaps of his own observation the preceding year that "There is some obscurity in the act of congress," Ex parte Burford, 3 Cranch 448 at 449, he then proceeded to analyze the meaning of the writ as described in § 14. He recognized that the term habeas

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corpus "is a generic term" including many species of that writ. It encompassed, he concluded, in addition to the Great Writ (habeas corpus ad subjiciendum, for an inquiry into the cause of restraint) the writ habeas corpus ad prosequendum. The "Great Chief Justice" noted, however, that, when used in the Constitution, [81 S.Ct. 341]5 that is, "when used singly -- when we say the writ of habeas corpus, without addition, we most generally mean that great writ" traditionally used to test restraint of liberty. Ex parte Bollman, supra, 4 Cranch at 95.

The Chief Justice, following the English practice, particularly 3 Blackstone, Commentaries *129, noted that the writ ad prosequendum was necessary to remove a prisoner in order to prosecute him in the proper jurisdiction wherein the offense was committed. In his discussion of the common usage of the various writs, he recognized in Ex parte Bollman, supra, that the Congress had without qualification authorized the customary issuance of the writ ad prosequendum by a jurisdiction not the same as that wherein the prisoner was confined.

Following the Judiciary Act of 1789, there came a series of legislative amendments dealing with habeas corpus, but, significantly, all related solely to the usages of the Great Writ.6 Simultaneously with the expansion of the Great Writ, there developed from the common source, § 14 of the first Judiciary Act, a second line of statutes -- the "All writs" portion of § 14, in large measure the first sentence of that section, devolved by a process of addition along a course parallel to but separate from the habeas corpus provisions. Upon revision of the federal statutes in 1874, the general power of courts to issue writs of habeas

Page 616

corpus, which was a part of the express grant in the first sentence of § 14, disappeared from the language of the statutes derivative from the all writs portion of the first sentence, R.S. § 716 (1875), which, after further amendment, is known today as 28 U.S.C. § 1651.7 This general power was, however, retained in the first of the three reorganized sections of the Revised Statutes dealing with habeas corpus, R.S. § 751 (1875),8 and served as the modern version of the authority for writs ad prosequendum upon which Marshall had relied in Ex parte Bollman.

The second section in the 1875 Revision of the laws on habeas corpus, R.S. § 752, authorizing issuance of the Great Writ by justices and judges, included the jurisdictional limitation9 which had been imposed for the first time10 in 1867, 14 Stat. 385. The motive for that limitation can be traced to the position reportedly taken by Chief Justice Chase in rejecting an application for the Great Writ from a prisoner on the [81 S.Ct. 342] ground that he was incarcerated outside his circuit.11 Mindful of the position taken

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by the Chief Justice, the Senate amended the first draft of the bill expanding once again the usage of the Great Writ and inserted the phrase "within their respective jurisdictions" -- an obvious limitation upon the action of individual judges and justices in exercising their power to issue the Great Writ. The debates in Congress indicate that it was thought inconvenient, potentially embarrassing, certainly expensive...

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