Henderson v. CIRCUIT COURT OF TENTH JUD. CIR., STATE OF ALA.
| Decision Date | 22 April 1968 |
| Docket Number | No. 25221.,25221. |
| Citation | 392 F.2d 551 |
| Parties | Leroy HENDERSON, Appellant, v. CIRCUIT COURT OF the TENTH JUDICIAL CIRCUIT, STATE OF ALABAMA et al., Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Leroy Henderson, pro se.
David W. Clark, Asst. Atty. Gen., Montgomery, Ala., for appellees.
Before GODBOLD and SIMPSON, Circuit Judges, and McRAE, District Judge.
Leroy Henderson, the appellant, petitioned for dismissal of an Alabama state felony charge and a detainer against him when he was serving a federal sentence in Atlanta, on the ground that the state had denied him a speedy trial while he was in federal custody. The district court denied relief and we affirm.
The appellant avers that while he was free on bail relative to the Alabama charge of "possession of a pistol after conviction of a felony", he departed that state; was sentenced to serve two years in a Georgia state court; escaped; and subsequently was convicted and sentenced for violation of the Dyer Act, Title 18, U.S.C. Section 2312.
From the record it further appears that the appellant has completed service of his federal sentence and presently is serving the remainder of his Georgia state sentence. We have no doubt that the State of Alabama could have obtained custody of the appellant for purposes of trial during service of his federal sentence, had the state desired to do so.
The appellant contends that the refusal of the State of Alabama to bring him to trial by means of a writ of habeas corpus ad prosequendum deprived him of his right to a speedy trial in violation of his constitutional rights under the Sixth and Fourteenth Amendments. He alleges further that during the delay, two of his defense witnesses have died, so that he could not receive a fair trial now or in the future.
The applicable law was well stated in McCary v. State of Kansas, 10 Cir. 1960, 281 F.2d 185, 187, as follows:
No case has come to our attention which authorizes the United States courts to require a state...
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United States v. Mitchell, 19798.
...and resolved upon the facts as they then appear. See Bistram v. Minnesota, 330 F.2d 450, 453 (8 Cir. 1964); Henderson v. Circuit Court, 392 F.2d 551, 552 (5 Cir. 1968). It is at that time that the speedy trial issue is to be determined in the light of cases such as United States v. Ewell, 3......
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Lawrence v. Blackwell
...have rested until the prisoner's federal custody terminated before affording him a trial on pending state charges. Henderson v. Circuit Court, 392 F.2d 551 (5th Cir., 1968); McCary v. Kansas, 281 F.2d 185 (10th Cir., 1960), cert. denied, 364 U.S. 850, 81 S.Ct. 94, 5 L.Ed.2d 73 (1960). As re......
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Hoskins v. Wainwright
...clear holding of Smith v. Hooey. Retroactivity But the State of Florida contends that our decision in Henderson v. Circuit Court of the Tenth Judicial Circuit, 5 Cir., 1968, 392 F.2d 551, rather than Smith v. Hooey, was the controlling law for the time period in question. Implicit in this a......
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Ruip v. Commonwealth of Kentucky
...McCary v. State of Kansas, 281 F.2d 185 (10th Cir.1960); Naugle v. State of Oklahoma, 375 F.2d 424 (10th Cir.1967); Henderson v. Circuit Court, 392 F.2d 551 (5th Cir.1968), Huston v. State of Kansas, 390 F.2d 156 (10th Cir. 1968). McCary said, 281 F.2d at "The failure of a state to bring a ......