Ali v. Gibson
| Decision Date | 28 December 1979 |
| Docket Number | Civil No. 76-535 |
| Citation | 16 V.I. 426 |
| Parties | ISHMAIL MUSLIM ALI (Formerly ISHMAEL S. La BEET), Petitioner v. WINSTON GIBSON, Commissioner of Public Safety, Respondent UNITED STATES BUREAU OF PRISONS, Intervenor |
| Court | U.S. District Court — Virgin Islands |
Prisoner's pro se petition challenging validity of his detention in federal custody and seeking other relief. The District Court, Chris-tian, Chief Judge, on remand from the Third Circuit Court of Appeals, upheld the challenge to the prisoner's detention on the mainland, holding that (1) statute which permitted the commissioner of public safety to order any inmate transferred from one institution to another referred only to institutions within the Virgin Islands and did not permit commissioner to transfer Virgin Islands prisoner to mainland federal facility; (2) the commissioner had no power to order such a transfer because, before doing so, the sentencing judge would have to have made a determination that such a transfer was in the best interests of the inmate or the general welfare of the territory and that that judge was powerless to do so, not having done so within 120 days after sentence was imposed or final judgment on appeal was rendered; (3) prisoners have a constitutional right to communicate with friends, relatives and attorneys by means of visits and correspondence; and (4) if the legislature were to vest the director of bureau of corrections with power to authorize transfers to mainland federal facilities, director would have to promulgate and court would have to approve guidelines to protect against unreasonable transfers and, before transfer, prisoners would have to be afforded hearing with minimum due process procedures.
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GEORGE M. ALEXIS, ESQ., Federal Public Defender, St. Thomas, V.I., for petitionerIVE ARLINGTON SWAN, ESQ., Attorney General of the Virgin Islands, JULIO A. BRADY, ESQ. (By Special Appointment of Counsel), Department of Law, St. Thomas, V.I., for respondent
ISHMAEL A. MEYERS, ESQ., United States Attorney, by HENRY E. DAVIS, ESQ., Attorney (Department of Justice), St. Thomas, V.I., for intervenor
OPINION
On September 6, 1972, in broad daylight, a group of armed, masked men virtually invaded the clubhouse of the Fountain Valley Golf Course. After having robbed guests and employees alike, they indiscriminately opened fire on their defenseless victims, killing eight persons and wounding several others.
Some days later, five men were arrested and charged with the crimes. They have come to be known as the "Fountain Valley Five" and their trial, as the celebrated "Fountain Valley Case".
Jury selection for a trial panel commenced on June 20, 1973, and was concluded on June 30, 1973, when a panel of twelve jurors and six alternates was impanelled and sworn. What proved to be by far the most tempestuous of criminal trials in the Caribbean area commenced on July 5, 1973.
Each of the five defendants was charged with eight counts of first degree murder, two counts of robbery and four counts of assault in the first degree, i.e., with intent to commit murder. The trial, marked with a profusion of vile and vituperative epithets hurled at the trial judge day after day, ended on August 5, 1973, when the case was handed to the jury for deliberation. On August 13th, thejury returned unanimous verdicts as required by law, finding each of the five defendants guilty as charged.
Sentence was imposed on the same day. Each defendant was sentenced to the mandatory term of life imprisonment on each of the eight counts of murder in the first degree. The trial judge ordered that the life sentences be served consecutively. A sentence of 15 years' imprisonment on each of the remaining six counts was imposed on the several defendants. Those six fifteen-year terms of imprisonment were ordered to be served concurrently with each other and concurrently with the sentence of life imprisonment imposed on Count 1 of the information.
On the very day of sentencing, the defendants were flown to the Commonwealth of Puerto Rico in the custody of United States Marshals.1 They remained incarcerated in Puerto Rico until on or about September 6, 1973, at which time they were transported to the United States penitentiary at Atlanta, Georgia. They were taken to that facility and delivered to its warden by the United States Marshal for the District of Puerto Rico. Subsequently, they were sent to separate federal institutions. Four of the five have continued in federal custody ever since. One of them remained in custody at Atlanta, Georgia, until on or about March 21, 1977, when he was transferred to the federal penitentiary at Marion, Illinois. That member of the so-called "Fountain Valley Five", formerly Ishmael La Beet, now by virtue of a change of name, Ishmail Muslim Ali, filed a pro se petition in this Court challenging the validity of his detention in federal custody and seeking other relief on numerous grounds. It is that proceeding, now on remand from the United States Court of Appeals for theThird Circuit, which is the subject of this Court's present concern.
The pro se petition of Ishmail Muslim Ali (hereafter sometimes Ali or petitioner) was filed in the District Court in the Division of St. Thomas and St. John on September 3, 1976. As is so often the case with pro se handwritten pleadings, the precise relief sought was not readily discernable. Because of the petitioner's reference to 28 U.S.C. § 2241, the federal habeas corpus section, the petition was treated as an application for a writ of habeas corpus.
Named as respondent was Winston Gibson, then Commissioner of Public Safety for the Virgin Islands.2
In his petition, Ali charged that he was suffering cruel and unusual punishment by virtue of the conditions under which he was incarcerated at Atlanta.3 Further supplementing his cruel and unusual punishment claim, Ali averred that incarceration at Atlanta was so far removed geographically from his homeland that family visits were rendered virtually impossible. Moreover, he went on to say, on the occasions when members of his family were able to visit him they were subjected to extreme harassment by prison officials and were not accorded the courtesy of the families of other inmates. Numerous subsidiary grounds for relief were pleaded4 and to the extent that they merit discussion, will be treated later on in this opinion.
Another form of relief principally sought by Ali was injunctive. He prayed in his petition for an order transferring him back to the Virgin Islands for the service ofhis sentence, and that his further transfer be enjoined. In essence, he alleged that his incarceration in federal custody was unlawful since it was not authorized by the laws of the Virgin Islands. His basic contention in this regard was that respondent could lawfully transfer prisoners only where doing so would "serve the best interest of the inmate". Since his life was in danger and further because he contends he was incarcerated under unusual, and inhuman circumstances, his best interest was being disserved and his return to the Virgin Islands was mandated. As a basis on which petitioner should be transferred to the Virgin Islands, this contention is wholly without merit.5
This Court, on motion of respondent, entered an Order the 4th day of November 1976 dismissing Ali's petition. In so ruling, we relied on the then well-established teaching of Ruiz v. United States, 5 V.I. 116, 365 F.2d 500 (3d Cir. 1966). We reasoned that since Ali had been convicted of criminal offenses under the Code of the Virgin Islands, he was ineligible for relief under 28 U.S.C. § 2241. We went on to point out that while the Virgin Islands Code indeed provided for habeas corpus relief at 5 V.I.C. § 1301 et seq., the District Court lacked jurisdiction to entertain the habeas corpus application of a petitioner
. . . confined at the federal facility at Atlanta, Georgia, regardless of the merits of the application. . . . 365 F.2d at 502.
Subsequently, petitioner moved the Court for reconsideration of its decision but that motion was denied by Order entered March 2, 1977.
Ali appealed to the United States Court of Appeals for the Third Circuit. That Court applying the "Braden" rule6 reversed our decision, holding in effect that the DistrictCourt of the Virgin Islands and, indeed, only the District Court of the Virgin Islands, had jurisdiction to entertain this petitioner's habeas corpus application. The Appellate Court ruled that jurisdiction hinged on the presence of the person of the custodian within the territory of the forum.7 Proceedings on remand having been had and briefs of all parties8 having been submitted, we now address the prime issues raised.
Why, and on what authority, or by whose orders, petitioner was removed from the Virgin Islands was in hot dispute at the hearing. Absolutely uncontroverted, however, is the fact that immediately after sentence had been imposed, petitioner and his co-defendants were ferreted out of St. Croix and to the District of Puerto Rico.9
The removal of petitioner from this district was accomplished without the prior approval, or even the knowledge, of his lawful custodian, the Commissioner of Public Safety. That official was made aware after the fact, although just when he was advised is not clear.
Testifying regarding the authority on which the prisoners reached their mainland destination, the federal facility at Atlanta, Georgia, the then Commissioner of Public Safety, Alphonso A. Christian, Esq., gave a version of the occurrence in which, while admitting that his recollection was not clear because of lapse of time, he claimed to have authorized United States Deputy Marshal Krim Ballentineto remove the petitioner and his co-defendants to a federal facility immediately upon their conviction, in the event that was the result of...
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