Lunsford v. Hudspeth

• Decision Date: 03 March 1942
• Docket Number: No. 2420.,2420.
• Citation: 126 F.2d 653
• Parties: LUNSFORD v. HUDSPETH, Warden.
• Court: U.S. Court of Appeals — Tenth Circuit

126 F.2d 653 (1942)

LUNSFORD v. HUDSPETH, Warden.

No. 2420.

Circuit Court of Appeals, Tenth Circuit.

March 3, 1942.

Wayne Coulson, of Wichita, Kan., for appellant.

Summerfield S. Alexander, U. S. Atty., and Homer Davis, Asst. U. S. Atty., both of Topeka, Kan., for appellee.

Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

On February 5, 1939, and while the petitioner was in custody of the Warden of the Oklahoma State Penitentiary serving a sentence for which he had been convicted in the courts of Oklahoma, he was delivered to the United States Marshal for the Northern District of Oklahoma, in obedience to a writ of habeas corpus ad prosequendum issued by the District Court of the Northern District of Oklahoma for trial on an indictment returned against him in that District on January 19, 1939.

The writ of habeas corpus ad prosequendum directed to the Warden of the state penitentiary commanded the Warden to deliver petitioner "now held in your custody and under your control, to the United States Marshal in and for the Northern District of Oklahoma, which said Marshal shall bring the bodies of the said Babe Susie and Vester Lunsford before the United States District Court for the Northern District of Oklahoma, at Tulsa, Oklahoma, on the 8th day of February, 1939, then and there to be tried as the defendants in a certain case wherein the United States of America is plaintiff and Babe Susie and Vester Lunsford are defendants and to hold said Babe Susie and Vester Lunsford subject to the further order of this court, and said Marshal shall then and there make return of his actions and doings on said writ as provided by law."

On February 9, 1939, the petitioner was tried and convicted on both counts of the indictment, charging violation of 18 U.S.C. A. § 88, and violation of 18 U.S.C.A. § 99, and sentenced to a term of three years on each count to run concurrently. The pertinent part of the judgment follows: "It is by the court ordered and adjudged that the defendant, having been found guilty of said offenses, is hereby committed to the custody of the Attorney General for imprisonment in an institution of the penitentiary type to be designated by the Attorney General or his authorized representative, for a period of * * *. It is further ordered that the Clerk deliver a certified copy of this judgment and commitment to the United States Marshal or other qualified officer and that the same shall serve as the commitment herein."

The return on the writ of habeas corpus ad prosequendum follows: "I received this writ at Tulsa, Oklahoma, on February 5, 1939, and on same date I transported the within named, Vester Lunsford from the State Penitentiary at McAlester, Oklahoma to Tulsa, Oklahoma for the purpose set forth herein, and after sentence was imposed in the District Court of the United States, I returned the said Vester Lunsford into the custody of the Warden of the Oklahoma State Penitentiary at McAlester, Oklahoma, on February 15, 1939, as within commanded."

When the petitioner was released from the Oklahoma State Penitentiary on November 2, 1940, after serving his sentence there, he was taken into custody by the United States Marshal on the commitment issued by the United States District Court on February 9, 1939, and delivered into the custody of the Warden of the Federal Penitentiary at Leavenworth, Kansas, on the same date.

The question presented for decision is whether the petitioner commenced the service of the sentence on February 9, 1939, the date on which it was imposed by the Federal Court, as he contends, or whether the service of the sentence commenced on November 2, 1940, the date on which he was surrendered by the state authorities to the United States Marshal and delivered to the custody of the Warden of the United States Penitentiary, as the Government contends, and as the trial court held. Concededly, if the sentence commenced to run on February 9, 1939, when it was imposed, the writ should issue. If the contention of the Government is correct, the writ should be denied.

The petitioner argues in effect, that the judgment of the United States District Court committed petitioner to the custody of the Attorney General on February 9, 1939, for imprisonment in an institution of the penitentiary type, to be designated by the Attorney General or his authorized representatives. That it was the duty of the United States Marshal to forthwith execute this judgment; that he had no authority to return him to the custody and control of the Warden of the Oklahoma State Penitentiary, and hence he has been in the constructive custody of the Attorney General since February 9, 1939.

Embedded in the question presented is an interplay between state and federal sovereignties in the exercise of the power of each to enforce and vindicate its laws. Out of the exercise of this power has evolved the now axiomatic rule of law that a sovereignty, or its courts, having possession of a person or property cannot be deprived of the right to deal with such person or property until its jurisdiction and remedy is exhausted and no other sovereignty, or its courts, has the right or power to interfere with such custody or possession. Ponzi v. Fessenden, 258 U.S. 254, 42 S. Ct. 309, 66 L.Ed. 607, 22 A.L.R. 879; Ex parte Johnson, Petitioner, 167 U.S. 120, 17 S.Ct. 735, 42 L.Ed. 103; Covell v. Heyman, 111 U.S. 176, 4 S.Ct. 355, 28 L.Ed. 390. It is equally well settled that unless founded upon some matter justifying the exercise of federal authority necessary to enforcement of rights and immunities granted by the constitution, laws and treaties of the United States, no court, or judge thereof, can issue a writ of habeas corpus to bring up a prisoner who is in custody under a sentence or execution of a State court for any other reason than to be used as a witness in the trial of a cause. Ex parte Burrus, 136 U.S. 586, 10 S.Ct. 850, 34 L.Ed. 500; Ex parte Dorr, 3 How. 103 11 L.Ed. 514; Ex parte Johnson, supra; Ex parte Burrus, supra, and In re Neagle, 135 U.S. 1, 10 S.Ct. 658, 34 L.Ed. 55. See, also, Velazquez v. People of Puerto Rico, 1 Cir., 77 F.2d 431.

As an easy and flexible means of administering justice and of affording each sovereignty the right and opportunity to exhaust its remedy for wrongs committed against it, there has evolved the now well established rule of comity which is reciprocal, whereby one sovereignty having exclusive jurisdiction of a person may temporarily waive its right to the exclusive jurisdiction of such person for purposes of trial in the courts of another sovereignty. Thus the offender is accorded a speedy trial and the administration of justice is expedited by the availability of evidence, which might through lapse of time be lost, but such a waiver is a matter addressed solely to the discretion of the sovereignty, or its representatives having power to grant it. Ponzi v. Fessenden, supra, and Ex parte Aubert, D.C., 51 F.2d 136. The privileges granted by this flexible rule of comity should and must be respected by the sovereignty to which it is made available, and this respectful duty is reciprocal, whether federal or state, because neither sovereignty has the power to override it. Under the free exercise of this rule, no right or immunity granted by the constitution, laws, or treaties of the United States, is invaded or impaired.

It is under these well grounded fundamentals that we proceed to determine whether the Marshal for the Northern District of Oklahoma acted in disobedience of the order and judgment of the United States District Court of the Northern District of Oklahoma, when he returned the petitioner to the Warden of the Oklahoma State Penitentiary, after trial and sentence.

On February 5, 1939, the petitioner was in the exclusive custody and control of the Warden of the Oklahoma State Penitentiary in obedience to a judgment of the State court and no one, except those having the powers of executive clemency could modify or commute the judgment and sentence. Neither could this exclusive custody and control be wrested from the State through the exercise of the powers of Federal courts to issue a writ of habeas corpus ad prosequendum. However, it was within the power of the Federal Court to demand and the Warden of the Oklahoma State Penitentiary to grant temporary relinquishment of custody and control for purposes of trial in the United States courts in order to afford the petitioner a speedy trial, and for convenience in the administration of justice. The means afforded for this accomplishment lies in the power of the Federal court to issue a writ of habeas corpus ad prosequendum, in accordance with Section 453, 28 U.S.C.A., which authorizes the issuance of a writ of habeas corpus when necessary to bring a prisoner into court to testify. There is, however, no magic in the Latin phrase "ad prosequendum" when used in connection with a writ of habeas corpus. It is merely a product of the common law, which comes to us in forms of pleadings and practice. Ex parte Bollman, 4 Cranch 75, 8 U.S. 75, 98, 2 L.Ed. 554. The use of the phrase "ad prosequendum" confers no powers not granted by the constitution and laws of the United States.

The writ here was issued in accordance with a form, no doubt traditionally used for the purpose of acquiring temporary jurisdiction, and the language used therein is formal and may be subject to some ambiguity, but its legal import when measured by the rule which governs its issue, is unmistakenly clear and its offices and purposes here cannot be distorted.

The writ commands the Warden of the Oklahoma State Penitentiary to deliver the body of the petitioner to the Marshal for the Northern District of Oklahoma, for the purposes of trial on an indictment returned to that court and specifically commands the Marshal to make return as "provided by law." In these circumstances, it cannot be presumed that the United States District Court...