Milstead v. Rison, 82-7122
| Citation | 702 F.2d 216 |
| Decision Date | 04 April 1983 |
| Docket Number | No. 82-7122,82-7122 |
| Parties | Howard MILSTEAD, Plaintiff-Appellant, v. R. RISON, Warden, Federal Correctional Institute, Talladega, Alabama and the Attorney General of Texas, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
Howard Milstead pro se.
Frank W. Donaldson, U.S. Atty., Holly Lee Wiseman, Asst. U.S. Atty., Birmingham, Ala., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Alabama.
Before RONEY, VANCE and ANDERSON, Circuit Judges.
On November 28, 1979 Howard Milstead was convicted in a Texas state court of a state offense and sentenced to two to ten years imprisonment. After he had served approximately four months, he was sentenced by a federal district court in Texas to five years imprisonment based on a conviction for a federal offense. The state judge had ordered his state sentence to be served concurrently with any federal one subsequently imposed. Because it is longer, however, the state sentence will not be completed at the end of the five-year federal sentence without some action by the Texas Parole Board. Milstead has been transferred to a federal penitentiary in Alabama. Texas has lodged a detainer against Milstead so that he will be returned to Texas for completion of his state sentence upon completion of his federal sentence. Although he has been eligible for state parole since November 1981, Milstead has learned that the Texas Parole Board will not consider him for parole unless he is in Texas's physical custody.
In his pro se habeas corpus petition filed in federal district court in Alabama, Milstead seeks to rid himself of the detainer. He contends that Texas deprived him of parole eligibility without due process by relinquishing him to federal authorities, and that Texas lost jurisdiction of him when it turned him over to the federal authorities, so that any attempt to return him to Texas after service of his federal sentence will violate double jeopardy and due process.
The district court permitted Milstead to file his petition in forma pauperis but summarily denied it without service of process upon defendants, the warden of the federal penitentiary in Talladega, Alabama and the Attorney General of the State of Texas. Although recognizing that the case could be transferred to the federal district court in Texas, the court viewed a transfer as unnecessary because Milstead's claim lacked merit. The court determined that Texas had not waived jurisdiction over Milstead and that none of Milstead's constitutional rights had been violated.
Initially, we note that Milstead probably could have brought his habeas corpus petition in a district court in either Texas or Alabama. The United States Supreme Court in Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), interpreted the jurisdictional statute for federal habeas corpus actions, 28 U.S.C.A. Sec. 2241, as permitting either of two district courts to entertain the habeas corpus petition of a prisoner confined in a state other than that which has issued the detainer: the district court in the district of confinement and the district court in the state which has lodged the detainer. Under Braden, the State of Texas is an appropriate respondent for Milstead's challenge to the Texas detainer, so that a federal forum in Texas would have been open to him for his habeas corpus action. The federal prison warden in Alabama where Milstead is imprisoned, however, is deemed the agent of the State of Texas for...
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