Decision Date22 April 1968
Docket NumberNo. 25221.,25221.
Citation392 F.2d 551
CourtU.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:

"It is well settled that the failure of a state to bring a defendant to trial on a state charge during the period of his confinement in a federal penal institution on a federal charge will not support a claim of denial of a speedy trial by the state court. The reason for the rule is that he is in custody in the federal penal institution because of his own wrongdoing and is beyond the custody and control of the state court, even though the federal government might grant the request of the state for custody of the defendant for the purpose of trial on the state charge."

No case has come to our attention which authorizes the United States courts to require a state...

To continue reading

Request your trial
14 cases
  • United States v. Mitchell, 19798.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • April 14, 1970
    ...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......
  • Lawrence v. Blackwell
    • United States
    • U.S. District Court — Northern District of Georgia
    • March 31, 1969
    ...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......
  • Hoskins v. Wainwright
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • September 14, 1973
    ...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......
  • Ruip v. Commonwealth of Kentucky
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • October 3, 1968
    ...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 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT