Applications of Oppenheimer, s. 7878

• Decision Date: 19 February 1964
• Docket Number: 7920,Nos. 7878,7948,8079,s. 7878
• Citation: 389 P.2d 696,95 Ariz. 292
• Parties: Applications of John G. OPPENHEIMER for Writs of Habeas Corpus. John G. OPPENHEIMER, Appellant, v. L. C. BOIES, Sheriff of Maricopa County, Charles P. Thomas, Phoenix Chief of Police, Appellees.
• Court: Arizona Supreme Court

Page 696

389 P.2d 696

95 Ariz. 292

Applications of John G. OPPENHEIMER for Writs of Habeas Corpus John G. OPPENHEIMER, Appellant, v. L. C. BOIES, Sheriff of Maricopa County, Charles P. Thomas, Phoenix Chief of Police, Appellees.

Nos. 7878, 7920, 7948, 8079.

Supreme Court of Arizona, In Banc.

Feb. 19, 1964.

John G. Oppenheimer, in pro. per.

Robert W. Pickrell, Atty. Gen., David M. Lurie, Asst. Atty. Gen., Phoenix, for appellees.

STRUCKMEYER, Justice.

On February 9, 1963, petitioner John G. Oppenheimer was arrested in Phoenix, Arizona, as a fugitive from justice and held on a fugitive complaint for the State of California. This Court's jurisdiction was first invoked when Oppenheimer filed a petition for writ of habeas corpus and for reduction of bail. This petition was docketed in this Court as Cause No. 7878. Three days later, Oppenheimer filed an amended petition. Shortly thereafter, he filed a second petition for writ of habeas corpus. This Court directed that they be heard by the Superior Court of Maricopa County and there determined as original applications for writs of habeas corpus. The two petitions, together with the amended petition, were heard by the Honorable Charles C. Stidham, Judge, and denied but bail was ordered reduced from $10,000 to $7,500.

Three days after Judge Stidham's order, appellant filed in this Court his third petition for writ of habeas corpus and two days later a fourth petition. Five days later, Oppenheimer was given a second hearing in the Superior Court of Maricopa County before the Honorable Irwin Cantor, Judge, upon a petition for a writ of habeas corpus addressed to that court. That petition was denied. In rapid succession, Oppenheimer filed in this Court a fifth and sixth petition for writs of habeas corpus. All of these petitions were forwarded to the superior court for appropriate action. Petitions three, four, five and six were heard by the Honorable Yale McFate, Judge, at a third hearing on April 15, 1963, and they were denied. Petitioner filed notice of appeal which was docketed as Cause No. 7948.

On the day of petitioner's third hearing in the superior court before Judge McFate, he filed in this Court his seventh petition for writ of habeas corpus. This was docketed as Cause No. 7920. Since its contents showed that petitioner was not entitled to any relief because of repetitious matters previously asserted in other petitions, or for the reason that the grounds urged did not justify the interposition of the writ, that application was summarily denied. Cf. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148.

Since that time, April 15, 1963, Oppenheimer has filed in this Court his eighth, ninth, tenth and eleventh petitions for writs of habeas corpus. He filed another petition in the superior court on September 6, 1963. This latter was heard on September 10, 1963, by the Honorable Warren McCarthy, Judge, and denied on the same day. Notice of appeal was filed as to this last petition and was docketed here as Cause No. 8079. This Court, on November 26, 1963, ordered all matters, both original applications and appeals, be consolidated for decision.

By the Arizona statutes, A.R.S. § 13-2001, a person unlawfully restrained of his liberty under any pretense whatsoever may petition for and prosecute a writ of habeas corpus to inquire into the cause of such restraint. He shall apply for the writ by verified petition and if the imprisonment is alleged to be illegal, it must state the particulars of the alleged illegality. A.R.S. § 13-2002. As an initial comment it may be stated that in many instances petitioner has alleged want of due process and other legal conclusions without supporting facts showing a prima facie case of illegality of restraint. The simple assetions of unlawfulness are insufficient. The writ of habeas corpus will not be abused by issuance unless the facts stated show that petitioner is entitled to be discharged. State ex rel. Patterson v. Superior Court, 26 Ariz. 584, 229 P. 96.

Oppenheimer's grounds of complaint as set forth in the petitions were many. The most serious assertions were that no court of competent jurisdiction issued a warrant for his arrest and that he was not a fugitive from justice. Technical complaints were made, as for example, he was arrested in West Phoenix Justice Precinct and not in East Phoenix Justice Precinct as alleged in the fugitive complaint. Interspersed were matters obviously not grounds for habeas corpus--that he had been assaulted by an inmate of the county jail, that the Sheriff of Maricopa County in whose custody he was placed was not giving him necessary protection, and that he was not given library privileges to the Maricopa County Law Library.

It appears that the Honorable Yale McFate had before him for consideration on April 15, 1963, not only petitions three through six but Oppenheimer's original, amended and second petitions previously denied by Judge Stidham. There was also included a petition for writ of habeas corpus lodged with the Honorable Henry S. Stevens, a Superior Court Judge, together with a letter to the court administrator of the Superior Court of Maricopa County to which was attached another petition for writ of habeas corpus.

It was established that on the 18th day of March, 1963, the Governor of Arizona honored the demand of the Governor of California and caused to be issued his warrant to hold and transport defendant to the State of California. The fugitive proceeding under which Oppenheimer had been held prior to March 18, 1963, had been dismissed. It, therefore, appeared that Oppenheimer was being then held solely on the Governor's warrant pursuant to A.R.S. § 13-1307.

The hearing before Judge McFate was treated as an application for and preliminary to the issuance of a writ of habeas corpus. Documents consisting of the original papers from California and the warrant of the Governor of the State of Arizona were tendered to the Court for its inspection. We have held, Ex parte Rubens (Rubens v. Boies), 73 Ariz. 101, 238 P.2d 402, certiorari denied 344 U.S. 840, 73 S.Ct. 50, 97 L.Ed. 653, that the governor's warrant is not final and conclusive. An accused may bring habeas corpus to question the insufficiency of the requisition. The court is then under the duty to find these jurisdictional facts, viz.: (1) that the complaint issued out of the demanding state was made on an affidavit; (2) that it substantially charges an offense; (3) that it is made to appear the accused is a fugitive from justice. Judge McFate, apparently being satisfied of the three foregoing jurisdictional facts, entered an order denying the application for the writs and dismissing the proceedings.

In Arizona, the writ of habeas corpus may be used only to review matters affecting a court's jurisdiction. State ex rel. Jones v. Superior Court, 78 Ariz. 367, 280 P.2d 691. Even where there has been a denial of due process of law, it must be such as to deprive a court of jurisdiction in order to permit of the issuance of the writ. Oswald v. Martin, 70 Ariz. 392, 222 P.2d 632. Were we to assume, which we do not, that Oppenheimer's original arrest and detention by reason of the fugitive complaint was illegal, he could not oppose extradition proceedings on that ground. Where it appears that sufficient grounds for detention exists, a prisoner will not be discharged for defects in the original arrest or commitment. Stallings v. Splain, 253 U.S. 339, 40 S.Ct. 537, 64 L.Ed. 940. Courts will not consider the illegality of the preliminary detention in the asylum state where subsequently a valid warrant on rendition has been signed by its governor. Travis v. People, 135 Colo. 141, 308 P.2d 997.

In this Court, Oppenheimer raises all the matters raised in the court below concerning the fugitive proceedings as well as matters directed against the validity of the governor's warrant on extradition. His complaints are in part addressed to informalities in a hearing before the attorney general prior to the issuance of the governor's warrant. As to these, we think they can be quickly resolved.

By A.R.S § 13-1304, when demand is made upon the governor of this state for the surrender of a person charged with crime in another state, the governor may call upon the attorney general to investigate the demand and report the situation and whether such person ought to be surrendered. This statute authorizes the governor to make an investigation if he so desires. It is permissive and not compulsory and, therefore, may be of the most informal type or none at all. Oppenheimer's complaints as to the...