Graham v. Carr, 9443.

• Decision Date: 22 June 1940
• Docket Number: No. 9443.,9443.
• Citation: 112 F.2d 908
• Parties: GRAHAM v. CARR, District Director of Immigration and Naturalization Service.
• Court: U.S. Court of Appeals — Ninth Circuit

112 F.2d 908 (1940)

GRAHAM v. CARR, District Director of Immigration and Naturalization Service.

No. 9443.

Circuit Court of Appeals, Ninth Circuit.

June 22, 1940.

Gallagher, Wirin & Johnson and A. L. Wirin, all of Los Angeles, Cal., for appellant.

Ben Harrison, U. S. Atty., and Ralph E. Lazarus, Asst. U. S. Atty., both of Los Angeles, Cal., for appellee.

Before DENMAN, MATHEWS, and HEALY, Circuit Judges.

MATHEWS, Circuit Judge.

This appeal is from an order discharging a writ of habeas corpus. Appellant¹ petitioned for the writ on June 23, 1939. The writ was issued forthwith. It was directed to appellee,² in whose custody the petition alleged appellant was detained. The writ commanded appellee to make return thereof on June 27, 1939, and at the same time to bring the body of appellant before the judge³ who had granted the writ. Appellee made return of the writ as commanded, but did not produce the body of appellant. The return stated: "* * * I appellee am unable to produce the body of Marcus Graham appellant for the reason that said Marcus Graham is not in my custody. * * * Marcus Graham is now in the custody of the United States Marshal, having been convicted and sentenced by the Honorable Harry A. Hollzer, Judge of the United States District Court for the Southern District of California, Central Division, on the 26th day of June, 1939.⁴ * * * Appellee denies each and every allegation in the petition for the writ.⁵ * * *"

Thus, in effect, the return stated that appellant was not in appellee's custody on June 23, 1939, when the petition was filed, nor on June 27, 1939, when the return was filed, but was, on the latter date, in custody of the marshal. The return was not traversed. Consequently, on June 27, 1939, an order was entered discharging the writ. This appeal followed.

The record on appeal consists of an agreed statement prepared and signed by the parties and approved by the District Court, pursuant to Rule 76 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.⁶ As prepared by the parties, the statement recited, inter alia, (1) that "it was on June 27, 1939 agreed between the parties and their counsel * * * that the petition for writ of habeas corpus should be deemed a traverse of the writ," and (2) that "the court on June 27, 1939 informed counsel for appellant that the court had lost jurisdiction." These recitals were not approved by the court, but were expressly disapproved,⁷ and are, therefore, no part of the record.

In his statement of points⁸ and in his brief, appellant asserts that the District Court erred "in ruling that its jurisdiction * * * which it acquired by service of the writ of habeas corpus * * * was lost by the subsequent order of commitment issued by another judge of the same court." There was no such ruling.

Also, in his statement of points and in his brief, appellant asserts that the District Court erred "in refusing to consider on the merits the validity of appellant's detention by the Immigration authorities and by the United States Marshal." Appellant's petition did not allege that he was detained by the marshal or by any "authority" other than appellee. The writ of habeas corpus was directed to appellee and to no one else. Appellant's detention — if he was detained — by anyone other than appellee was not a matter which could properly be considered in this case.

The alleged detention of appellant by appellee was denied by the return, which, not being traversed, was conclusive on the court. Crowley v. Christensen, 137 U.S. 86, 94, 11 S.Ct. 13, 34 L.Ed. 620; Stretton v. Rudy, 5 Cir., 176 F. 727, 730; United States v. Day, 2 Cir., 20 F.2d 302, 303. There being no detention of appellant by appellee, the writ...