549 F.Supp. 621 (S.D.N.Y. 1982), 82 Civ. 3760, Carmona v. Warden of Ossining Correctional Facility

Docket Nº:82 Civ. 3760-CSH.
Citation:549 F.Supp. 621
Party Name:Arcadio CARMONA, Petitioner, v. WARDEN OF OSSINING CORRECTIONAL FACILITY, et al., Defendants.
Case Date:September 21, 1982
Court:United States District Courts, 2nd Circuit, Southern District of New York
 
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549 F.Supp. 621 (S.D.N.Y. 1982)

Arcadio CARMONA, Petitioner,

v.

WARDEN OF OSSINING CORRECTIONAL FACILITY, et al., Defendants.

No. 82 Civ. 3760-CSH.

United States District Court, S.D. New York.

Sept. 21, 1982

Arcadio Carmona, petitioner pro se.

John S. Martin, Jr., U.S. Atty., New York City, for defendants; Edward G. Williams, Asst. U.S. Atty., New York City, of counsel.

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

Arcadio Carmona seeks a writ of habeas corpus pursuant to 28 U.S.C. ss 2241 and 2254 alleging that his transfer from state to federal custody was unlawful. In a Memorandum Opinion and Order dated July 23, 1982 I denied petitioner's motion for release on bail pending disposition of the habeas petition. I turn now to the merits of the petition.

It is clear that petitioner was transferred to the Metropolitan Correctional Facility, a federal facility within the Southern District of New York, pursuant to a writ of habeas corpus ad testificandum signed by the Honorable Milton Pollack on March 1, 1982. At the time this writ was signed, petitioner was incarcerated in the Ossining Correctional Facility, a state facility, where he was serving a two to four year sentence imposed in New York State Supreme Court on January 29, 1982. By affidavit dated September 10, 1982, Assistant United States Attorney Carl T. Solberg avers that the writ was issued in order to interview petitioner in connection with an upcoming criminal trial (Solberg Aff. pp. 1-2). Because the Government hoped to obtain petitioner's testimony at trial, the writ was not marked satisfied. (Solberg Aff. p. 2). Petitioner refused to testify at the first trial which ended in a mistrial. At the retrial, which commenced on May 12, 1982, petitioner testified for the defense. That trial ended in an acquittal. At present, petitioner continues to refuse to be interviewed by Government attorneys. (Solberg Aff. p. 2). The Government believes "he has extensive knowledge of heroin trafficking" and intends to call petitioner to testify before the Grand Jury. The United States Attorney is in the process of applying to the Justice

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Department for authorization to grant him immunity should he invoke the Fifth Amendment (Solberg Aff. p. 2).

United States district courts are authorized by 28 U.S.C. s 2241(c)(5) to issue writs of habeas corpus "when it is necessary to bring a prisoner...

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