Bass v. Kelly

• Decision Date: 20 August 1980
• Docket Number: No. 80-40260.,80-40260.
• Citation: 504 F. Supp. 776
• Parties: Carl BASS, Petitioner, v. James KELLY, William Milliken, and Fob James, In their respective official capacities, Respondents.
• Court: U.S. District Court — Western District of Michigan

504 F. Supp. 776

Carl BASS, Petitioner, v. James KELLY, William Milliken, and Fob James, In their respective official capacities, Respondents.

No. 80-40260.

United States District Court, E. D. Michigan, S. D.

August 20, 1980.

William Brisbois, Mr. William T. Street, Saginaw, Mich., for petitioner.

Patrick Meter, Chief Asst. Pros. Atty., Saginaw, Mich., Brenda Turner, Asst. Atty. Gen., Lansing, Mich., Jean Brown, Asst. Atty. Gen., Montgomery, Ala., for respondents.

MEMORANDUM OPINION AND ORDER

NEWBLATT, District Judge.

Plaintiff is a black male who was convicted of first-degree murder by a twelve-member jury in Alabama Circuit Court for the Tenth Judicial Circuit, Jefferson County (State Court) on February 21, 1974, and sentenced to life imprisonment on February 22, 1974. The conviction was subsequently affirmed by the Circuit Court of Criminal Appeals of Alabama on May 6, 1975. No appeal to the Supreme Court of Alabama has been taken. Since his conviction, Plaintiff has escaped from custody on two occasions and extradition proceedings seeking his return to Alabama were undertaken in both Oregon and Michigan. Pursuant to Art. IV § 2, cl 2 of the United States Constitution, 18 U.S.C. § 3182, and the Uniform Extradition Act as adopted by Michigan and codified at MCL §§ 780.1-.31 (1970), and in accordance with the Supreme Court decision in Michigan v. Doran, 439 U.S. 282, 99 S.Ct. 530, 58 L.Ed.2d 521 (1978) the Governor of Alabama issued a requisition for Plaintiff's extradition. The Governor of Michigan responded by issuing a warrant for Plaintiff's arrest and Plaintiff's extradition was ordered by Judge Eugene Snow Huff of Saginaw County Circuit Court (state court) on July 24, 1980. Said order has been temporarily stayed by this Court's order of July 23, 1980 pending determination of the disposition of this action. 28 U.S.C. § 2251.

This action was brought pursuant to 28 U.S.C. § 2254 and 42 U.S.C. § 1983. Plaintiff cites various constitutional violations in his underlying Alabama State Court conviction and subsequent custody, and contends that further violations of his constitutional rights could result were he extradited to Alabama. Plaintiff's complaint seeks an order staying his extradition pending a hearing on his civil claims pursuant to 28 U.S.C. § 2243 and 28 U.S.C. § 2251. Plaintiff seeks injunctive relief and a declaratory judgment preventing his extradition and declaring that his extradition and incarceration in Alabama would violate his constitutional rights. 28 U.S.C. §§ 2201, 2202. Furthermore, Plaintiff seeks habeas corpus relief discharging him from custody. 28 U.S.C. §§ 2241, 2254.

Several facts and circumstances of this case and of the theories propounded by Plaintiff make it an unusual application of the actions and remedies cited above. In addition to the traditional civil challenges to his underlying conviction, which include alleged violations of his Sixth and Fourteenth Amendment right to effective assistance of counsel and Fifth and Fourteenth Amendment right against self incrimination, he asserts a variety of violations including a failure to provide a preliminary examination, (waiver not revealed on the record), omission of exculpatory evidence, insufficient voir dire of jury members and witnesses, (or record thereof). (Count I). Plaintiff contends that his extradition and reconfinement in the Alabama prison system would violate the Thirteenth and Eighth Amendments of the Constitution. With respect to the Thirteenth Amendment claim, Plaintiff alleges that his medical treatment by the Alabama prison medical personnel resulted in the amputation of his legs and constituted a "badge of servitude," (Count II). With respect to the Eighth Amendment claim, Plaintiff alleges that returning him to the medical treatment and conditions of confinement in the Alabama prison system would constitute cruel and unusual punishment, (Count III). Plaintiff also frames a 42 U.S.C. § 1983 action citing the same Constitutional violations set forth above, (Count IV).

Plaintiff's petition names three Defendants, James Kelly, Sheriff of Saginaw County; William Milliken, Governor of the state of Michigan; and Fob James, Governor of the state of Alabama. While the original action was instituted against Defendants in their official capacities, leave to amend the complaint to state a cause of action against Defendant governors individually as well as in their official capacities was granted by oral order at the hearing held on August 8, 1980.

Upon filing the complaint on July 23, 1980, this Court held a hearing on that date to determine the nature of Plaintiff's claims and to develop and define the manner of proceeding. Finding sufficient questions were raised as to the Constitutionality of Plaintiff's confinement, but there not being sufficient time nor information for proper evaluation of Plaintiff's claims, due to the impending extradition hearing scheduled for the next day, this Court issued an order temporarily staying the effect of the state extradition proceedings pending proper response by parties and a determination of this Court's jurisdiction and venue. 28 U.S.C. § 2251.

An answer and brief in opposition to the complaint were filed on July 24, 1980, on behalf of Defendant Sheriff Kelly. While Defendant Kelly does not dispute the jurisdiction of this Court and acknowledges that Plaintiff is in custody in the Saginaw County Jail pursuant to the Governor's warrant, Defendant Kelly affirmatively asserts that this Court's inquiry and power to grant the relief prayed for is limited by Michigan v. Doran, supra, and that in any event, the state of Alabama is the more appropriate and convenient forum for the evaluation of Plaintiff's claims of violations of Plaintiff's constitutional rights. Furthermore, Defendant Kelly asserts that Plaintiff has failed to exhaust his state court remedies including appeal to the Supreme Court of Alabama, and application for the writ of error coram nobis or coram vobis. See e. g. Winegar v. Corrections Dept., 435 F.Supp. 285 (D.C.Mich., 1977) aff'd. 582 F.2d 1281, (1978); But see Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); and Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (decisions exploring the relationship of habeas corpus and § 1983 actions and the exhaustion requirement). Finally, Defendant Kelly asserts that certain issues raised by Plaintiff in this action have already been litigated in a prior § 1983 action in the United States District Court sitting in Alabama and subsequently affirmed by Fifth Circuit and are therefore res judicata. See Bass v. Sullivan, # 75-71-N, (M.D.Ala., 1975) aff'd, 550 F.2d 229 (5 Cir. 1977); cert den 434 U.S. 864, 98 S.Ct. 195, 54 L.Ed.2d 138 (1977).

The Defendant Governor of Alabama takes a position similar to that of Defendant Sheriff. The Governor of Alabama objects to the forum, to this Court's review of the extradition proceedings as limited by Michigan v. Doran and to Plaintiff's failure to exhaust available state remedies.

Defendant Governor Milliken filed a motion to dismiss pursuant to FRCP 12(b)(6) for failure to state a claim upon which relief may be granted. While Defendant Governor does not dispute the general jurisdiction of this Court to consider Plaintiff's claim, Defendant Governor Milliken asserts he is an improper party to the action inasmuch as Rule 2 of § 2254 provides that "the state officer having custody of the applicant shall be named as respondent." (emphasis added) Furthermore, Defendant Governor Milliken asserts that the decision to extradite is an executive decision beyond this Court's review, Michigan v. Doran, supra; Ex parte Dennison v. Kentucky, 24 How. 66, 16 L.Ed. 717 (1861), and that the state of the underlying controversy, that is Alabama, is the preferred district for consideration of the habeas claim. Defendant Governor Milliken also challenges the propriety of the § 1983 action brought against him claiming that an action against a governor constitutes an improper action against the state and furthermore that the extradition proceedings are invoked pursuant to Federal Constitutional law rather than under color of state law as required by § 1983. In this regard Defendant relies upon the fact that the Uniform Extradition Act was adopted in Michigan pursuant to the extradition clause of the Federal Constitution.

Oral arguments on Defendant Governor's motion to dismiss and the general order to show cause why Plaintiff's habeas claim should not be considered by this Court were heard on August 8, 1980. The matter was taken under advisement in order to evaluate the nature of Plaintiff's claims, to determine this Court's jurisdiction over the action, to resolve the question of proper or appropriate venue and if necessary, to evaluate the proper parties and scope of review of matters raised in the petition.

While none of the parties have challenged the jurisdiction of this Court to consider Plaintiff's petition, this Court considers it advisable to specifically address the matter beyond mere citation of 28 U.S.C. § 2254 or 42 U.S.C. § 1983. (See FRCP 12(h)(3) where subject matter jurisdiction may be questioned or challenged at any stage of the proceeding on the Court's own motion). Thus, consideration is called for in light of the unusual circumstances, theories, situs of the action and the effect of the extradition process in satisfying the custody requirement of 28 U.S.C. § 2254. As previously stated, Plaintiff has escaped from Alabama where he was incarcerated pursuant to a state court conviction for first-degree murder. The conviction was later affirmed by the Alabama Court of Criminal Appeals. Petitioner sought asylum first in Oregon but fled that state when he learned extradition would be effected there. (See Plaintiff's affidavit filed August 7, 1980, at ¶ 13 and Plaintiff's affidavit filed July 22, 1980 at ¶ 9). Plaintiff's flight to...