Carmona v. Warden of Ossining Correctional Facility

• Decision Date: 21 September 1982
• Docket Number: No. 82 Civ. 3760-CSH.,82 Civ. 3760-CSH.
• Citation: 549 F. Supp. 621
• Parties: Arcadio CARMONA, Petitioner, v. WARDEN OF OSSINING CORRECTIONAL FACILITY, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

549 F. Supp. 621

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.

September 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. §§ 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 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. § 2241(c)(5) to issue writs of habeas corpus "when it is necessary to bring a prisoner into court to testify or for trial." United States v. Mauro, 436 U.S. 340, 357, 98 S.Ct. 1834, 1845, 56 L.Ed.2d 329 (1977). Writs issued to command a witness' presence for purposes of testimony, writs of habeas corpus ad testificandum, are "steeped in history" and have their roots in early English law. Ballard v. Spradley, 557 F.2d 476, 479-80 (5th Cir..1977), citing Ex parte Bollman, 8 U.S. (4 Cranch) 75, 98-99, 2 L.Ed. 554 (1807) and 3 W. Blackstone Commentaries 129-30. Over a century ago, the United States Supreme Court concluded that the federal court's authority to issue a writ to secure the testimony of prisoners extended to persons in custody under a state sentence. Ex parte Dorr, 44 U.S. (3 How.) 103, 105, 11 L.Ed. 514 (1845). As the Court of Appeals for this Circuit has more recently explained:

"This exclusivity of jurisdiction of the state and federal sovereignties does not mean, of course, that another sovereignty interested in prosecuting the individual or eliciting his testimony must necessarily stand idly by while the prisoner completes the service of the sentence imposed by the courts of the first sovereignty. For instance, pursuant to a writ of habeas corpus ad prosequendum or, as here, a writ of habeas corpus ad testificandum it is clear that the first sovereignty can, without in any way affecting the integrity of the final judgment of conviction entered there against the prisoner, `lend' its prisoner to the second sovereignty for trial on charges pending against him there or in order to have him testify in the courts of the second sovereignty. E.g., Ponzi v. Fessenden, supra, 258 U.S. 254 at 265-66, 42 S.Ct. 309 at 312, 66 L.Ed. 607; Lunsford v. Hudspeth, supra, 126 F.2d at 655-57; Zerbst v. McPike, supra, 97 F.2d 253 at 254." In re Liberatore, 574 F.2d 78, 89 (2d Cir. 1978).

The writ of habeas corpus ad testificandum issued by Judge Pollack on March 1, 1982 commands petitioner's presence "to appear and be interviewed with respect to violations" of federal narcotics laws. He is to be returned to state custody only after he has "been so interviewed and excused by the United States Attorney for the Southern District of New York." Because petitioner has refused to be interviewed by Government attorneys, the United States Attorney's Office for the Southern District has not yet excused petitioner in order to allow his return to state custody. As part of its ongoing efforts to obtain petitioner's testimony, the Government now plans to call him to testify before the Grand Jury. A writ of habeas corpus ad testificandum is a proper method for obtaining petitioner's presence in order to elicit this testimony. Adams v. United States, 423 F.Supp. 578 (E.D.N.Y.1976) (writ of habeas corpus ad testificandum issued to obtain state prisoner's testimony before Federal Grand Jury).¹

Petitioner's transfer to federal custody has had no effect on his ongoing...