Carnage v. Sanborn
| Decision Date | 13 June 1969 |
| Docket Number | Civ. A. No. 12045. |
| Citation | 304 F. Supp. 857 |
| Parties | George L. CARNAGE, Jr. v. Keith SANBORN, State Attorney of Wichita, Kansas. |
| Court | U.S. District Court — Northern District of Georgia |
George L. Carnage, Jr., pro se.
Petitioner's action in the nature of mandamus was allowed filed in forma pauperis and the petition was denied on August 22, 1968. The case was appealed to the Court of Appeals for the Fifth Circuit and is now before the district court after being remanded for reconsideration in light of the Supreme Court's decision in Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), and the Fifth Circuit's decision in May v. Georgia, 409 F.2d 203 (5th Cir. 1969).
The petition alleges that respondent, the State Attorney of Wichita, Kansas, has refused petitioner's repeated requests that he be brought to trial on charges which have been pending against him in the State of Kansas since 1966. Petitioner contends that he is therefore being denied a speedy trial and he asks this court to issue an order requiring defendant to show cause "as to why petitioner has been denied his constitutional right to a fair and speedy trial." Although there is no specific prayer for relief, it appears that petitioner seeks the writ of mandamus to compel defendant to bring him to trial.
The petition does not include any allegation as to the basis upon which this court has jurisdiction to entertain the instant action, nor does it allege facts from which jurisdiction could arise. The All-Writ Statute, 28 U.S.C. § 1651, is of no help to petitioner for it is not a jurisdictional statute; it merely provides that federal courts "may issue all writs necessary or appropriate in aid of their respective jurisdictions." Clearly, then, the court is authorized thereby to issue appropriate writs only in those actions over which it already has jurisdiction. Furthermore, even though the Mandamus and Venue Act of 1962 (28 U.S.C. § 1361) is a jurisdictional statute, giving the district courts "original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the petitioner," it is not applicable to the instant case for the defendant here is a state rather than a federal employee.
The district courts are courts of limited jurisdiction; they have only such jurisdiction as has been specifically conferred upon them by Congress. Unless petitioner can bring himself within the provisions of a jurisdictional statute the court is without power to entertain his action. The court notes also that even if jurisdiction over the subject matter could be established it would still not be possible for the court to render a valid judgment in personam against a defendant, such as this defendant, over whom it does not have personal jurisdiction.
For the reasons stated above, the court concludes that this petition must be dismissed for lack of jurisdiction. However, in view of the Fifth Circuit's direction on remand the court notes that Smith v. Hooey, supra, would be of no help to petitioner in the present action even without the jurisdictional problem. In Smith v. Hooey the Supreme Court merely held that the State...
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Braden v. 8212 6516
...ex rel. White v. Hocker, 306 F.Supp. 485 (Nev. 1969). But see Lawrence v. Blackwell, 298 F.Supp. 708 (ND Ga. 1969); Carnage v. Sanborn, 304 F.Supp. 857 (ND Ga. 1969); Kirk v. Oklahoma, 300 F.Supp. 453 (WD Okl. 1969) (alternative holding). 7 See United States v. Hayman, 342 U.S. 205, 72 S.Ct......
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...479 F.2d 1099 (8th Cir. 1973); National Milk Producers Federation v. Shultz, 372 F.Supp. 745, 747 (D.D.C.1974); Carnage v. Sanborn, 304 F. Supp. 857, 858 (N.D.Ga.1969). See also, the dicta in Chaudoin v. Atkinson, 494 F.2d 1323, 1329 (3d Cir. 1974); Waddell v. Alldredge, 480 F.2d 1078 (3d C......
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...cert. den. 387 U.S. 945, 87 S.Ct. 2079, 18 L.Ed.2d 1332, nor does it independently confer jurisdiction on this Court, Carnage v. Sanborn, 304 F.Supp. 857 (N.D.Ga.1969). Furthermore, as noted infra, 28 U.S.C., Section 1361 would be inapposite in any event, since no discernable duty is either......
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