Crow v. United States

• Decision Date: 28 October 1963
• Docket Number: No. 17327.,17327.
• Citation: 323 F.2d 888
• Parties: Glen Eugene CROW, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

323 F.2d 888 (1963)

Glen Eugene CROW, Appellant, v. UNITED STATES of America, Appellee.

No. 17327.

United States Court of Appeals Eighth Circuit.

October 28, 1963.

Eugene P. Mitchell, Kansas City, Mo., for appellant.

F. Russell Millin, U. S. Atty., and William A. Kitchen, Asst. U. S. Atty., Kansas City, Mo., for appellee.

Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and HANSON, District Judge.

VAN OOSTERHOUT, Circuit Judge.

Appellant Crow has appealed from the order of the district court denying his petition for writ of habeas corpus ad prosequendum. The trial court permitted notice of appeal to be filed but denied appellant the right to proceed further in forma pauperis on the ground that his appeal was frivolous. Upon application, this court permitted appellant to pursue his appeal in forma pauperis. Crow v. United States, 8 Cir., 316 F.2d 207. We appointed Eugene P. Mitchell of the Kansas City Bar as attorney for the appellant. We express our thanks to Mr. Mitchell for the excellent brief filed and for his able representation of the appellant in connection with this appeal.

Appellant in his petition filed February 28, 1963, states that he is serving a ten-year prison sentence imposed by the Circuit Court of Jasper County, Missouri, upon his conviction on a state burglary charge. He makes no claim that he is being illegally held upon such charge by the state authorities. Appellant alleges that on May 14, 1962, a warrant for his arrest was issued by the United States Commissioner for the Southwestern Division of the United States District Court for the Western District of Missouri based upon a complaint filed charging him with violation of 18 U.S.C.A. § 2115. A copy of the warrant and a request that a detainer be placed against appellant were lodged with the State Prison Warden and notation was made thereof on the prisoner's records.

Appellant claims that the Sixth Amendment to the Constitution of the United States grants him a right to a speedy trial and that his right is being abridged and he prays that the court order him to be brought before it so that he may answer the federal charge lodged against him. The court by order dated March 1, 1963, denied the petition without a hearing upon the basis that the petition on its face showed appellant was not entitled to the relief he seeks; the order stating:

"Petitioner obviously has no right to be taken from state custody and brought before the Court to answer federal charges as a part of his right to a speedy trial. The fact that petitioner\'s trial on the federal charges is being delayed because he is in the custody of the state is no fault of the federal government. The fault, if it rests anywhere, rests with petitioner himself. Thus, the situation in which petitioner finds himself is entirely of his own making. Although, in some cases, a writ of habeas corpus may be issued in order for the federal government to prosecute persons in state custody, this is a prerogative of the government and not of the petitioner in a particular case."

The basic issue presented by this appeal is whether the trial court abused its discretion or committed error in denying the writ.

Any uncertainty that may have previously existed with respect to the availability of a writ of habeas corpus ad prosequendum by a federal court for the purpose of requiring the production of a prisoner already in custody of a state has been settled by Carbo v. United States, 364 U.S. 611, 81 S.Ct. 338, 5 L.Ed.2d 329. The history and scope of the writ is there fully discussed.¹

Ponzi v. Fessenden, 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607, is the landmark case setting out the guide lines for determining conflicts in criminal jurisdiction over the person of the accused. The court states:

"The chief rule which preserves our two systems of courts from actual conflict of jurisdiction is that the court which first takes the subject-matter of the litigation into its control, whether this be person or property, must be permitted to exhaust its remedy, to attain which it assumed control, before the other court shall attempt to take it for its purpose." 258 U.S. 254, 260, 42 S.Ct. 309, 310-311, 66 L.Ed. 607.

The court goes on to say that once this is accomplished no sound basis exists why the sovereignty cannot waive its right to exclusive custody in order to permit another sovereignty to subject the prisoner to prosecution for a crime against it, and such an arrangement of comity between the state and federal governments works in no way to the prejudice of the prisoner or either sovereignty.

This court has held that except for rules of comity when one system of courts takes jurisdiction over a person, that person is withdrawn from the judicial power of the other and that when a person has violated the criminal statutes of two different sovereigns, it is for the sovereigns and not for the criminal to settle who shall first inflict punishment. Nolan v. United States, 8 Cir., 163 F.2d 768, 771; United States ex rel. Demarois v. Farrell, 8 Cir., 87 F.2d 957, 962.

We believe the fact that an appeal is pending on the state conviction is a factor entitled to be considered in the court's determination of the propriety of granting the writ. The state proceedings cannot be said to have been completed before the pending appeal is decided. Some question may exist as to the propriety of requesting the state to surrender the person before the completion of the state proceedings. The disposition of the state appeal may also well have a material bearing upon the prosecution of the federal charge. The United States Attorney in his brief states:

"Even where it appears the likelihood of successful rehabilitation is remote, justice does not require that sentence be piled upon sentence. In the present case appellant is already serving a lengthy sentence totaling ten years. Whether it would be of benefit to try him for the federal offense has not yet been fully

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