Kennon v. Hill, s. 93-3252
| Decision Date | 24 January 1995 |
| Docket Number | Nos. 93-3252,93-3257,s. 93-3252 |
| Parties | John R. KENNON, Petitioner-Appellant, v. Mike HILL, Sheriff, of Sedgwick County, Kansas; Robert T. Stephan, Attorney General of the State of Kansas, Respondents-Appellees. J.C. WOODALL, Petitioner-Appellant, v. Mike HILL, Sheriff of Sedgwick County, Kansas; Robert T. Stephan, Attorney General of the State of Kansas, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Charles D. Dedmon, Asst. Federal Public Defender for the District of Kansas, Wichita, KS (Charles D. Anderson, Federal Public Defender for the District of Kansas, with him on the briefs), for petitioner-appellant John R. Kennon in 93-3252.
Roger L. Falk of Law Office of Roger L. Falk, P.A., Wichita, KS, for petitioner-appellant J.C. Woodall in 93-3257.
Debra S. Peterson, Asst. Dist. Atty., Wichita, KS (Debra S. Byrd, Asst. Dist. Atty., and Nola Foulston, Dist. Atty., on the brief) for respondents-appellees.
Before EBEL, McKAY, and REAVLEY, * Circuit Judges.
The petitioners, J.C. Woodall and John R. Kennon, have filed for habeas corpus relief, seeking to avoid extradition to Alabama without some assurances that they will not be subjected to the death penalty in Alabama. Because they present some identical issues, their petitions have been consolidated for appeal.
The pertinent facts alleged by the State of Alabama may be summarized as follows. Mr. Woodall approached Mr. Kennon in Kansas and attempted to hire him to kill Mr. Woodall's mother in Alabama. Mr. Kennon refused to perform the killing himself, but introduced Mr. Woodall to Freddie Glenn Pope, who subsequently carried out the murder of Mrs. Woodall, also wounding Mr. Woodall's brother in the process. All of the contacts between Mr. Kennon, Mr. Woodall and Mr. Pope took place in Kansas.
A grand jury in Alabama indicted both Mr. Woodall and Mr. Kennon with two counts of capital murder and one count each of capital murder and felony assault. Under Alabama law, the offense of capital murder is punishable by death. Ala.Code Sec. 13A-5-39(1) (1982); Ala.Code Sec. 13A-5-40 (1991 Supp.).
Mr. Woodall and Mr. Kennon were arrested in July of 1989 in Kansas. Governor Hunt of Alabama sought extradition of both men as fugitives from justice. Governor Mike Hayden signed extradition warrants for each. Both men sought habeas corpus, and these warrants were ultimately quashed when it was determined that the men were not fugitives from justice because they had personally conducted no criminal activities in the State of Alabama. Governor Hunt then made a second request for extradition on the basis that the men's activities in Kansas had caused crimes in Alabama. The new Governor of Kansas, Joan Finney, signed new nonfugitive extradition warrants in June of 1991.
Messrs. Kennon and Woodall again filed petitions for habeas corpus, alleging several grounds for relief. These petitions were denied by the Kansas district court. The denials were affirmed by the Kansas Court of Appeals, and the Supreme Court of Kansas declined to review these decisions. Messrs. Kennon and Woodall then sought further habeas corpus relief in the United States District Court in Kansas, which also denied them relief. They then appealed.
The primary common basis for these petitions is the fact that Governor Finney placed the following language on each of the extradition warrants:
Whereas, as Governor of Kansas, I am acceding to the request of the State of Alabama upon condition that [petitioner], in the event of conviction of the aforesaid crimes, shall not receive the death penalty.
This attempt by Governor Finney to condition the extradition of these two nonfugitives is apparently unprecedented in American history and raises issues of first impression in this court. However, the validity of the condition is not at issue in this proceeding. The Kansas Court of Appeals held that Governor Finney had the authority to attach the condition on the extradition warrant: "Appellant cites no authority for the position that the governor may not attach a condition to a discretionary grant, and we have found none." Kennon v. Hill, Memorandum Opinion of the Court of Appeals of the State of Kansas, No. 66,868, at 3 (April 10, 1992). (Kennon Mem.Op.) The Kansas court apparently reasoned that because the Governor has the discretion to grant or deny extradition in nonfugitive cases, the lesser included power to grant extradition with an attached condition could be implied. We are bound by that determination.
Since the Kansas courts have held that the Governor had the power to place the condition on the warrant, the next question is: What rights, if any, does the condition create in the defendants? And if any rights have been created, are they currently enforceable, or are they rights which can only arise in the future?
Perhaps the most useful way to look at the condition is to use contract terminology. The appellants would have us read the condition as a condition precedent. Under this interpretation, the warrant could not be executed without an explicit promise from Alabama that they would comply with the condition because Kansas would have retained the right to withhold delivery of the petitioners pending satisfaction of the condition. The main basis for these habeas corpus petitions is that Alabama has not made such an explicit promise. Thus, the petitioners argue that Kansas should not be allowed to hold them for eventual transfer to the Alabama authorities.
In contrast, the Kansas authorities argue that the condition is a covenant or condition subsequent. Under this reading, the contract rights of Mr. Woodall and Mr. Kennon would not vest until they are in the hands of the Alabama authorities. By assuming custody of the petitioners on the basis of the conditional warrant, Alabama would implicitly promise to abide by the condition. A subsequent failure to uphold this implicit agreement would then give rise to a ripe claim. At this time, however, no explicit promise is necessary because acceptance of the prisoners would, in itself, be an implicit promise.
The Kansas Court of Appeals has apparently taken the latter view. Although the opinions do contain some contradictory language, when read together it is clear that they have rejected Mr. Woodall's and Mr. Kennon's views. In Mr. Kennon's case they stated:
The governor's warrant is presumed valid and regular in all respects.... The receiving governor's warrant does not require any promise by Alabama to comply with the condition before rendition. Petitioner has not sustained the burden of showing that Alabama will not comply with Governor Finney's condition. If it does not, petitioner may have a cause of action of a contract nature in some other court at some other time, but this cannot prevent his rendition to Alabama authorities by Kansas.
(Kennon Mem.Op. at 4). In response to Mr. Woodall's petition, the Kansas court made a similar statement: "The warrant does not condition extradition upon receipt of an explicit promise from Alabama authorities that Woodall will not receive the death penalty." Woodall v. Hill, Memorandum Opinion of the Court of Appeals of the State of Kansas, No. 67,121, at 16 (Oct. 23, 1992) (Woodall Mem.Op.). Again, the court opined, "Woodall may have a cause of action or potentially a federal habeas corpus action" if Alabama does not comply. Id.
Absent an error of constitutional magnitude, we are bound by the Kansas court's interpretation of Kansas state law, including the meaning of the Governor's extradition warrant. See Clemons v. Mississippi, 494 U.S. 738, 747, 110 S.Ct. 1441, 1447, 108 L.Ed.2d 725 (1990). Mr. Woodall and Mr. Kennon contend that the conditional language has been rendered meaningless under the Kansas courts' interpretation. They suggest that the condition has given them a liberty interest, and that the failure to give current meaning to their rights amounts to a denial of due process of law. 1 Although we might have interpreted Governor Finney's condition differently, we do not find the Kansas court's interpretation to be so arbitrary and irrational as to rise to the level of a constitutional violation. Thus, we are unable to discern any basis to provide relief to Mr. Kennon and Mr. Woodall at this time.
The Kansas court also stated that "[Mr. Kennon] has not sustained...
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