Lawson v. Coiner, Civ. A. No. C-68-3-E.
| Decision Date | 15 October 1968 |
| Docket Number | Civ. A. No. C-68-3-E. |
| Citation | 291 F. Supp. 79 |
| Court | U.S. District Court — Northern District of West Virginia |
| Parties | Robert LAWSON, Petitioner, v. Ira M. COINER, Warden of the West Virginia State Penitentiary, Respondent. |
No appearance for petitioner.
C. Donald Robertson, Atty. Gen. of West Virginia, Morton I. Taber, Asst. Atty. Gen., Charleston, W. Va., for respondent.
In October, 1963, Petitioner, Robert Lawson, pleaded guilty to the offense of forgery and was sentenced to 1-10 years in the West Virginia State Penitentiary. He was paroled on June 24, 1965. Petitioner absconded supervision and on November 1, 1965, he left the state without permission, in violation of his parole. In Illinois he stole a truck, and he was arrested in Ohio on November 29, 1965, while driving this truck. Both West Virginia and Illinois authorities were notified of Petitioner's custody and both states indicated a desire to proceed against him, West Virginia parole authorities requesting the Ohio authorities to hold him until available for return to West Virginia. On December 2, 1965, Petitioner waived extradition proceedings to the Illinois authorities. Petitioner now claims that he desired to waive extradition to West Virginia, but, on being advised that West Virginia did not desire to extradite, he waived extradition to Illinois. The waiver to Illinois contains the statement that it was made and signed without promise or inducement. In Illinois, Petitioner served a sentence for auto larceny, and was released on August 29, 1967. West Virginia had filed a warrant of arrest and hold order with the state of Illinois, and on these Petitioner was held for extradition.
On October 2, 1967, counsel was appointed to represent Petitioner in Illinois. This counsel requested time to file habeas corpus proceedings in Illinois. This habeas corpus petition was subsequently withdrawn, and the Petitioner executed a waiver of extradition to West Virginia. Petitioner was then delivered to the West Virginia authorities on November 4, 1967. On November 8, 1967, Petitioner received notice of his parole revocation hearing, informing him of his right to employ an attorney to represent his interests. This hearing was held November 13, 1967, at which time he was again advised that he had a right to be represented by an attorney. Petitioner appeared without an attorney, claiming at the hearing and by a prior submitted petition that West Virginia lost jurisdiction over his person by failing to extradite him from Ohio, at the time Illinois extradited him. The Parole Board, considering his testimony and his submitted petition, found Petitioner guilty of parole violation, and Petitioner has since been incarcerated to complete his prison sentence.
Petitioner now seeks a federal writ of habeas corpus, pursuant to Title 28, § 2254, United States Code, in which he offers two basic contentions: (1) that West Virginia impliedly waived and released all jurisdiction over Petitioner by relinquishing him to the Illinois authorities, and (2) that he was denied his right to appointed counsel at the parole revocation hearing in violation of the Sixth Amendment as applied through the Due Process Clause of the Fourteenth Amendment.
Having considered all the matters presented, the Court is of the opinion that the petition fails to raise or fairly to suggest any ground cognizable under federal habeas corpus.
Petitioner does not attack his prior conviction but challenges the decision of the Parole Board to revoke his parole. He contends that West Virginia relinquished jurisdiction by failing to extradite him from Ohio, and therefore cannot now constitutionally order him to complete his sentence.
A recent memorandum decision handed down by the Fourth Circuit Court of Appeals renders this contention devoid of merit. In Turner v. Boles (4th Cir. #11,692, April 3, 1968), a parolee from West Virginia was surrendered to Virginia where he was tried, convicted and placed on probation. Subsequently, West Virginia revoked his parole and returned him to prison. Petitioner there claimed the same relinquishment of jurisdiction as does the Petitioner in the case at bar. In dismissing the claim, the Court cited Banks v. O'Grady, 113 F.2d 926, 927 (8th Cir. 1940), saying This Court applied the rule in Dean v. State of Ohio, 107 F.Supp. 937 (N.D.W.Va.1952), stating at page 940 that "the separate sovereigns may voluntarily surrender a prisoner to each other without the consent of the prisoner, and in such circumstances the question of jurisdiction and custody is purely one of comity between the sovereigns, not a personal right of the prisoner." Accord, United States ex rel. Hunke v. Ragen, 158 F.2d 644 (7th Cir. 1947); Strand v. Schmittroth, 251 F.2d 590 (9th Cir. 1957). Perhaps the clearest statement of this principle is contained in Ponzi v. Fessenden, 258 U.S. 254 at page 260, 42 S.Ct. 309, at page 310, 66 L.Ed. 607 (1922):
One accused of crime has a right to a full and fair trial according to the law of the government whose sovereignty he is alleged to have offended, but he has no more than that. He should not be permitted to use the machinery of one sovereignty to obstruct his trial in the courts of the other, unless the necessary operation of such machinery prevents his having a fair trial. He may not complain if one sovereignty waives its strict right to exclusive custody of him for vindication of its laws in order that the other may also subject him to conviction of crime against it. (Citations omitted). Such a waiver is a matter that addresses itself solely to the discretion of the sovereignty making it and of its representatives with power to grant it.
The holding in the Turner and Dean cases above evolve from one jurisdiction knowingly and intentionally delivering a parolee by extradition to a second state for the purpose of prosecution, and later, reclaiming jurisdiction of the prisoner for violation of parole. A fortiori, in the principle case, West Virginia, by passively acquiescing to Illinois' extradition proceedings, in no way conclusively gave up their right to prosecute Petitioner for parole violation, but only...
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