Dean v. State of Ohio

• Decision Date: 16 October 1952
• Docket Number: No. 611.,611.
• Citation: 107 F. Supp. 937
• Parties: DEAN v. STATE OF OHIO et al.
• Court: U.S. District Court — Northern District of West Virginia

107 F. Supp. 937

DEAN v. STATE OF OHIO et al.

No. 611.

United States District Court N. D. West Virginia, Wheeling Division.

October 16, 1952.

Wayne Brooks, Wheeling, W. Va., for petitioner.

No appearance for respondents.

WATKINS, District Judge.

At the January, 1948 Term of the Intermediate Court of Kanawha County, West Virginia, petitioner was sentenced to life imprisonment as an habitual criminal. After entering upon his sentence he filed a petition for a writ of habeas corpus in the Circuit Court of Marshall County, West Virginia, where the state penitentiary is located, claiming that he had been pardoned of one of the former convictions upon which his sentence as an habitual criminal had been based and that this made his sentence invalid. The Circuit Court held for petitioner but the Supreme Court of Appeals of West Virginia reversed, and remanded the petitioner to serve his life sentence. Dean v. Skeen, W.Va., 70 S.E.2d 256.

While serving that sentence, he was taken to Columbus, Ohio, and there tried and convicted of murder in the state court and sentenced to life imprisonment for that offense, after which he was returned to the West Virginia penitentiary to serve the first sentence of life imprisonment. The Ohio authorities lodged a detainer against him.

While serving the West Virginia sentence he filed this petition for habeas corpus claiming, (1) illegal extradition to the State of Ohio while imprisoned in West Virginia; (2) illegal extradition back to the State of West Virginia after his trial, sentence and commitment in Ohio, and (3) contends that West Virginia lost the right of custody to his person when he was committed to the Ohio penal institution. Petitioner also asks that this court order the Ohio authorities to release the detainer against him, on the ground that the Ohio sentence is invalid because of the method used by the Ohio authorities in obtaining custody of him. He claims that the West Virginia authorities lost custody over him when he was sentenced and committed in Ohio for murder.

Dwelling first on the issue raised by the petitioner concerning his illegal extradition to Ohio by law enforcement officers of that jurisdiction and his subsequent trial and conviction there, it must be noted that one of the basic rules governing the issuance of a writ of habeas corpus is to the effect that the function of this writ is to determine whether a person is presently being unlawfully detained. In view of this limitation it is clear that the only inquiry facing the court pertains to the legality of petitioner's present incarceration by the state of West Virginia, and not his prior illegal extradition to Ohio. The petitioner is not presently in any way imprisoned by Ohio.

In Kelly v. Aderhold, 10 Cir., 112 F.2d 118, 119, the court was faced with a factual situation wherein the petitioner was detained under commitment of a North Carolina court and filed for a writ of habeas corpus and directed it solely to the judgment and sentence of a South Carolina court. In affirming the denial of the petition the court stated: "* * * One confined in prison has no right to the writ unless he is entitled to immediate release. The writ will not issue unless he is presently restrained of his liberty without warrant of law. * * * While being detained under the judgment and sentence of one court, petitioner could not challenge by habeas corpus the validity of the judgment and sentence of another court." It was further stated in Pope v. Huff, 73 App.D.C. 170, 117 F.2d 779, that habeas corpus may be sought only to effectuate a prisoner's immediate release and not to test the legality of imprisonment at some future time.

This court stated in Pebley v. Knotts, D.C., 95 F.Supp. 283, 286, "It is well settled that the function of a writ of habeas corpus is to determine whether a person is now being unlawfully detained — not whether he was unlawfully arrested or abducted or extradited at some prior time, and not whether he has been unlawfully restrained or detained by federal or state officers in the past. A petitioner is not entitled to release by habeas corpus unless he is presently restrained of his liberty without warrant of law and unless entitled to immediate release."

In reference to the prayer of the petitioner that the detainer lodged against him by the Ohio authorities be declared null and void it may be said that the very fact that he is in no way detained by it at the present time makes habeas corpus an incorrect procedure to inquire into its legality.

In passing on the subject of the petitioner's extradition to Ohio it should be noted that it is virtually a universal rule that where an accused is found in a jurisdiction wherein he is charged with a crime, the circumstances surrounding his actual presence within that jurisdiction will not be inquired into. If he was brought from another jurisdiction by kidnapping, stratagem or illegal extradition he may still be tried if he is presently being held under process legally issued from a court of that jurisdiction. State v. McAninch, 95 W.Va. 362, 121 S.E. 161; State v. Sisler, 122 W. Va. 594, 11 S.E.2d 534; Ex parte Brown, D.C., 90 F.Supp. 50; Pebley v. Knotts, supra. See also 165 A.L.R. 948 for a general discussion of this topic.

It is therefore clear that even if habeas corpus should be available to the petitioner to challenge his forceful extradition to Ohio, yet, once he was in that jurisdiction he would be amenable to their laws and could not be set free because of something that illegally took place in the past, to wit: his extradition. Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509.

Petitioner inquires also into the legality of his present detention by West Virginia, stating that he was illegally brought back to West Virginia and also that West Virginia lost the right to his custody when he was committed to the Ohio penal institution. These...