Hayward v. Looney
| Decision Date | 12 June 1957 |
| Docket Number | No. 5573.,5573. |
| Parties | Walter L. HAYWARD, Appellant, v. Chesley H. LOONEY, Warden, United States Penitentiary, Leavenworth, Kansas, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
William J. Donlon, Denver, Colo., for appellant.
Milton P. Beach, Asst. U. S. Atty., Kansas City, Kan. (William C. Farmer, U. S. Atty., Topeka, was with him on the brief), for appellee.
Before PHILLIPS, PICKETT and LEWIS, Circuit Judges.
This is an appeal from an order dismissing an application for a writ of habeas corpus. Prior to June 6, 1951, Hayward was in the custody of the authorities of the State of Louisiana on a charge of possession of narcotics, and he was surrendered by the state authorities to the United States. On the date above mentioned, he was brought before the United States District Court for the Eastern District of Louisiana and entered a plea of guilty to a charge of forging and uttering a United States Treasury check in violation of 18 U.S. C.A. § 495. Thereupon, the Federal court imposed a sentence reading as follows:
The judgment of the Federal court contained no reference to any state sentence and no recital as to the time of commencement of the Federal sentence.
On July 27, 1951, he was surrendered back by the Federal authorities to the Louisiana authorities and thereafter was sentenced by a state court to imprisonment for a period of five years. On September 22, 1955, he was released from the Louisiana State Penitentiary and was taken into custody by a United States Marshal, who delivered him to the United States Penitentiary at Leavenworth, Kansas, where he has since been confined under the Federal sentence.
It is the contention of Hayward that the Federal sentence commenced to run on June 6, 1951, and that it has expired.
Either the Federal or a state government may voluntarily surrender its prisoner to the other without the consent of the prisoner. Whether jurisdiction and custody of a prisoner shall be retained or surrendered is a matter of comity and is to be determined by the sovereign having custody.1
If the prisoner has violated the law of both sovereigns, he is subject to prosecution by both and he may not complain of or choose the manner or order in which each sovereign proceeds against him.2
While the record before us may not affirmatively show that the Attorney General of the United States authorized the return of Hayward to the state authorities, there is a presumption that public officers will act lawfully and it will be presumed that the return of Hayward to the state authorities was duly authorized, absent an affirmative showing to the contrary.3
18 U.S.C.A. § 3568 provides:
It is well settled that when a state surrenders a prisoner to the Federal government for the purpose of trial on a Federal charge and upon conviction and sentence in the Federal court, the Federal authorities surrender custody of the prisoner back to the state autho...
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