Jenkins v. Garrison

• Decision Date: 20 February 1995
• Docket Number: No. S94A1678,S94A1678
• Parties: JENKINS a/k/a Entratter v. GARRISON, Sheriff.
• Court: Georgia Supreme Court

Page 698

453 S.E.2d 698

265 Ga. 42

JENKINS a/k/a Entratter v. GARRISON, Sheriff.

No. S94A1678.

Supreme Court of Georgia.

Feb. 20, 1995.

W. Bruce Maloy, Maloy & Jenkins, Atlanta, for Jenkins.

Garry T. Moss, Dist. Atty., Canton, for Garrison.

BENHAM, Presiding Justice.

Petitioner, a Georgia resident, was charged in an indictment returned in Alabama in December 1992 with 11 counts of misdemeanor distribution of obscene materials. Upon learning of her indictment, petitioner surrendered to respondent, the sheriff of Cherokee County, Georgia, and was released on bond. Thereafter, pursuant to a request for interstate rendition from the Governor of Alabama, the Governor of Georgia issued a warrant for petitioner's arrest and deliverance to the Alabama authorities. Petitioner sought and was denied a writ of habeas corpus by the superior court of Cherokee County and now seeks review of that decision. ¹

1. The extradition process has a constitutional foundation in Article IV, Section 2, Clause 2 of the U.S. Constitution ² and statutory roots in the Uniform Criminal Extradition Act (UCEA) passed by the Georgia General Assembly in 1951. OCGA § 17-13-20 et seq. ³ The federal constitutional provision and the implementing state statutes (Sections 2 and 3 of the uniform act (OCGA §§ 17-13-22 and 23)) ⁴ require the governor of the asylum state to have arrested and delivered to the governor of a requesting state a person charged with a crime in the requesting state who has fled from justice and been found in the asylum state. Puerto Rico v. Branstad, 483 U.S. 219, 227, 107 S.Ct. 2802, 2807, 97 L.Ed.2d 187 (1987). It is a "nondiscretionary exercise of executive responsibility under a constitutional imperative." State v. Sinacore, 151 N.J.Super. 106, 376 A.2d 580, 583 (1977). A governor's refusal to perform this ministerial function may be remedied by an action for writ of mandamus. Puerto Rico v. Branstad, supra.

A request for rendition based on the constitutional provision and its implementing legislation is limited to the extradition of a fugitive from justice found in the asylum state. Jackson v. Pittard, 211 Ga. 427, 428, 86 S.E.2d 295 (1955); McFarlin v. Shirley, 209 Ga. 794, 798-99, 76 S.E.2d 1 (1953). A fugitive from justice is

a person who, having committed or been charged with a crime in one state, has left its jurisdiction and is found within the territory of another when it is sought to subject him to the criminal process of the former state. [Anderson v. Roth, 231 Ga. 369, 370, 202 S.E.2d 91 (1973) ].

If a request for extradition is premised on the constitutional provision, one arrested and held on the governor's warrant issued in response to the request is entitled to habeas corpus relief upon establishing that he is not a fugitive from justice. Jackson v. Pittard, supra. See also Rutledge v. Tolbert, 240 Ga. 116, 239 S.E.2d 520 (1977).

2. Section 6 of the UCEA (OCGA § 17-13-25) ⁵ was designed to cover cases not clearly reached by the constitutionally-based extradition laws; that is, where the accused could not technically be called a fugitive because he had committed a crime against the laws of a demanding state by doing acts outside of that state. Uniform Criminal Extradition Act (U.L.A.), Commissioners' Prefatory Note. Section 6 permits the governor of an asylum state to surrender to the governor of a requesting state a non-fugitive--a person found in the asylum state who is accused by the requesting state of committing acts outside the boundaries of the requesting state that result in a crime in the requesting state. The effectiveness of Section 6 depends, not on a constitutional mandate, but upon comity between the states. Uniform Criminal Extradition Act (U.L.A.), Commissioners' Prefatory Note. When this provision is used as the basis for requesting interstate rendition of an accused, whether the accused was present in the requesting state at the time of the commission of the crime and fled therefrom are not at issue. Haupt v. Mitchell, 256 Ga. 844, 353 S.E.2d 345 (1987). ⁶

3. Section 10 of the UCEA provides that the target of the extradition proceedings may test the legality of his detention by applying for a writ of habeas corpus. OCGA § 17-13-30(a). Where a habeas corpus petitioner is being held under a governor's warrant based on an extradition proceeding, the warrant, if valid on its face raises the presumption that the governor complied with the Constitution and law, and the burden is on the petitioner to show a "valid and sufficient reason" why the warrant should not be executed. Baldwin v. Grimes, 216 Ga. 390, 116 S.E.2d 207 (1960). Once the governor of the asylum state has issued a warrant of rendition, a court considering a petition for a writ of habeas corpus is limited to determining four "readily verifiable" facts: whether the extradition documents on their face are in order; whether the petitioner has been charged with a crime in the demanding state; whether the petitioner is the person named in the request for extradition; and whether the petitioner is a fugitive. Michigan v. Doran, 439 U.S. 282, 289, 99 S.Ct. 530, 535, 58 L.Ed.2d 521 (1978); Johnson v. Mitchell, 256 Ga. 339, 349 S.E.2d 186 (1986).

The basis of petitioner's habeas petition is her assertion that the warrant issued by the Georgia governor is invalid because both it and the Alabama governor's request for interstate rendition repeatedly refer to her as a "fugitive from justice" despite the fact that the State of Alabama has never contended that she committed the offenses in Alabama and then fled. The Alabama governor's request for interstate rendition of petitioner invoked the federal constitution and federal laws and averred that petitioner had committed the crimes in Alabama and had then fled to Georgia. The warrant issued by the Georgia governor acknowledged receipt of the Alabama governor's demand and supporting documents that charged petitioner with having committed the crimes in Alabama, and referred to petitioner six times as a "fugitive from justice" in ordering her arrest and deliverance to the Alabama governor's designated agent. The governor's warrant did not give either a constitutional or statutory basis for its issuance. Compare Mitchum v. Stynchcombe, 227 Ga. 226, 179 S.E.2d 919 (1971); Johnstone v. Deyton, 233 Ga. 146, 210 S.E.2d 692 (1974); Watson v. Grimes, 218 Ga. 631, 129 S.E.2d 795 (1963); Jackson v. Pittard, supra. ⁷

The discrepancy between the governor's warrant asserting that petitioner is a fugitive from justice (and therefore was present in Alabama when the crimes were committed) and the stipulation that Alabama is not contending that petitioner was in Alabama when the crimes were committed requires examination of the documents submitted in support of the request for rendition in an effort to establish the validity of the issuance of the warrant. See Mitchell v. Dodd, 238 Ga. 638(1), 235 S.E.2d 15 (1977); Watson v. Grimes, supra. See also Cronauer v. State, 174 W.Va. 91, 322 S.E.2d 862, 868 (1984); State v. Soto, 423 So.2d 362 (Fla.1982). ⁸ Submitted to the governor of Georgia with the request for rendition of petitioner was the indictment charging her with knowingly distributing, possessing with intent to distribute, or offering or agreeing to distribute obscene material, in violation of Alabama law. ⁹ The application for extradition submitted to the Alabama governor by an Alabama district attorney asserted that the crimes were alleged to have been committed in Birmingham, Alabama, and that petitioner was a fugitive from justice believed to be in Georgia. Despite this assertion, the applicant struck through the portion of the pre-printed form which asserted petitioner had been in Alabama at the time of the commission of the crimes and made reference to the affidavit of an Alabama deputy attorney general who asserted that Alabama was not alleging that petitioner was in Alabama when the crimes allegedly occurred, but was the person responsible for the distribution of obscene material in Alabama. ¹⁰ As was stated earlier, the Alabama governor's request for rendition asserted that petitioner was a fugitive from justice who had taken refuge in Georgia, and "pursuant to the provisions of the Constitution and the Laws of the United States ...," requested her apprehension and deliverance to Alabama authorities.

In its order denying relief, the habeas court acknowledged that the extradition pleadings contained "various defects." Relying on the presumption that the governor knew the law, the habeas court concluded that the governor had acted lawfully and exercised his discretion in issuing the warrant. We do not disturb the habeas court's findings of fact as they are supported by evidence; however, we must reverse the conclusion drawn therefrom as it is not based on sound legal footing.

Whether the Georgia governor exercised his discretion in issuing the rendition warrant is the critical question in this case. When a rendition warrant is issued pursuant to the constitutional mandate (i.e., that the accused committed the crime in the demanding state and fled therefrom) in response to another state's request based on Section 6 of the UCEA (i.e., the accused is asserted to have committed acts outside the demanding state that intentionally result in a crime within the demanding state), or when it is established that the accused was not in the demanding state at the time of the commission of the crime, habeas corpus relief is granted because the accused has been denied the exercise of gubernatorial discretion to which he is entitled. Ex parte Holden, 719 S.W.2d 678 (Tx.App.1986); Dutil v. Rice, 34 Conn.Supp. 78, 376 A.2d 1119 (1977); Koenig v. Poskochil, 238 Neb. 118, 469 N.W.2d 523 (1991); Ex parte Kaufman, 73 S.D. 166, 39 N.W.2d 905 (1949). See also Watson v. Grimes, supra, 218 Ga. 631, 129 S.E.2d 795, and Jackson v. Pittard, supra, 211 Ga. 427, 86 S.E.2d 295. Thus, it is of paramount...