Broshears v. Com. of Ky.
| Decision Date | 24 January 1986 |
| Citation | 785 F.2d 307 |
| Parties | Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. ROY BROSHEARS, Petitioner-Appellant, v. COMMONWEALTH OF KENTUCKY, Defendant-Appellee. 85-5500 |
| Court | U.S. Court of Appeals — Sixth Circuit |
BEFORE: LIVELY, Chief Judge; WELLFORD, Circuit Judge; and PORTER, * Senior Judge, District Court.
Appellant Broshears appeals from the dismissal of his habeas corpus petition by the United States District Court for the Eastern District of Kentucky which adopted in full the findings of the United States Magistrate. We find that the dismissal was proper and therefore affirm.
On November 2, 1968 Appellant Roy Broshears was sentenced to life imprisonment following his conviction for murder in Kentucky's Bell County Circuit Court. While appealing his conviction, Broshears remained in the Bell County Jail from which he escaped on July 28, 1969. About seven years later Broshears was arrested in Chicago by federal officials who charged him with 'unlawfully aiding and assisting in the escape of federal prisoners' during the 1969 escape. On October 27, 1976 Broshears was found guilty of the federal offense in the United States District Court for the Eastern District of Kentucky. He was sentenced to a five-year term of imprisonment 'to be served consecutively to any state sentence which the defendant may be required to serve prior to the beginning of the sentence this day imposed.' Joint Appendix at 23. Broshears was taken to the federal pentitentiary at Leavenworth, Kansas where he served his five-year sentence. While in prison, Broshears sought unsuccessfully to challenge his return to Kentucky following the completion of his federal sentence. Upon release from his federal sentence he was returned on January 24, 1983, over his protests, to Kentucky to serve the remainder of his life sentence for murder.
Appellant contends that his subsequent custody in Kentucky was illegal detention in violation of the due process clause of the fifth and fourteenth amendments. Specifically, Broshears claims that Kentucky authorities waived their right to imprison him on the life sentence when they did not take custody of him following his conviction for a federal offense in the federal court in Kentucky. Broshears relies on a trio of Kentucky cases which have held that under certain circumstances a state may lose jurisdiction over a prisoner who is serving a sentence when they release that prisoner to another state through improper procedures. See Thomas v. Schumaker, Ky., 360 S.W.2d 215 (1962); Davis v. Harris, Ky. 355 S.W.2d 147 (1962); Jones v. Rayborn, Ky., 346 S.W.2d 743 (1961). In particular, Broshears argues that Jones v. Rayborn is applicable because of the similarity to his circumstances. In that case habeas corpus relief was granted to a prisoner who was transferred against his will to a federal penitentiary shortly before he was eligible for parole under state law, and who was then returned to state custody under circumstances that violated the original understanding made in releasing him. The Rayborn court held that such a release constituted 'arbitrary action in disregard of essential right and justice.' 346 S.W.2d 747.
Moreover, Broshears contends that the Sixth Circuit has followed the Jones v. Rayborn rationale in some cases when it has noted that a state which surrenders a person to another jurisdiction loses all rights thereafter to require him to serve the remainder of his sentence. Hines v. Ohio Adult Parole Authority, 448 F.2d 410, 411-412 (6th Cir. 1971). See also Thompson v. Bannan, 298 F.2d 611 (6th Cir. 1962). Broshears urges this Court to read these cases broadly and to extend their rationale. Specifically appellant urges us to accept a rule that would impose an affirmative duty on a state to reacquire jurisdiction over an escapee in the hands of another sovereign in order to avoid waiving jurisdiction over him.
This Court has previously held that a state does not have such an affirmative duty. In Chick v. Wingo, 387 F.2d 330 (6th Cir. 1967), we denied habeas corpus relief under similar circumstances. In that case appellant had escaped from a Kentucky jail after a jury had returned guilty verdicts and sentences, but before formal...
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