Rutkowski v. Johnston, 22794.

• Decision Date: 29 October 1943
• Docket Number: No. 22794.,22794.
• Citation: 52 F. Supp. 430
• Court: U.S. District Court — Southern District of California
• Parties: RUTKOWSKI v. JOHNSTON, Warden.

52 F. Supp. 430

RUTKOWSKI v. JOHNSTON, Warden.

No. 22794.

District Court, D. California.

October 4, 1943.

Rehearing Denied October 14, 1943.

Application for Writ of Habeas Corpus Denied October 29, 1943.

Frank Rutkowski in pro. per.

No appearance by the Government.

DENMAN, Circuit Judge.

An application addressed to me as a United States Circuit Judge seeks a writ of habeas corpus.

The petition alleges that petitioner has filed a similar application addressed to United States District Judge St. Sure and that he has not passed upon the same. The application also alleges that another judge, United States District Judge Louis E. Goodman, attempted to obtain jurisdiction of the application addressed to Judge St. Sure. I can find no statutory warrant for a judge to whom an application for writ of habeas corpus is not addressed assuming jurisdiction to decide it.

Since there is an application for writ of habeas corpus pending before Judge St. Sure, and for the further reasons stated in Bowen v. Johnston, D.C., 51 F.Supp. 717, filed September 17th, 1943, with the Clerk of the United States District Court at San Francisco, the application addressed to me is hereby denied.

On Motion for Rehearing.

Petitioner renews his argument that his petition for writ of habeas corpus should be entertained by me. According to the allegations of his petition he has submitted a similar petition to United States District Judge St. Sure, upon which Judge St. Sure has not given his decision. The opinion and decision heretofore filed by me herein on October 4, 1943, holds that Judge St. Sure cannot divest himself of his jurisdiction by attempting to transfer it to some other District Judge. Hence, according to the allegations of petitioner's petition for writ of habeas corpus he has still pending before Judge St. Sure an identical petition for the writ.

Motion for rehearing is denied.

On Motion for Hearing an Application for a Writ of Habeas Corpus Heretofore Denied.

The application for a writ of habeas corpus, heretofore addressed to and entertained by me, was denied on the ground that it appeared from the application that another petition was addressed to District Judge A. F. St. Sure, as such judge, and not to the United States District Court for the Northern District of California, of which court Judge St. Sure is one of the judges, and that it had not been decided by Judge St. Sure.

The applicant now moves, in effect, for a setting aside of the order herein denying the application addressed to me and that it now should be entertained. The ground of his motion is that since the denial of the writ in this proceeding, he moved Judge St. Sure, in writing, to hear his application and that Judge St. Sure denied his motion on the grounds stated by Judge St. Sure, as follows:

"Replying to your `Motion to Hear Writ of Habeas Corpus' addressed to me and dated October 18, 1943.

"The records show that on July 26, 1943, you filed a petition for a writ of habeas corpus addressed to me, which petition was assigned under the rules of this court to Judge Goodman. Judge Goodman held that under the authority of Wright v. Johnston D.C., 49 F.Supp. 748, he had a right to entertain the writ, and on September 15, 1943 denied it.

"Subsequently you filed a petition for a writ of habeas corpus on October 4, 1943, addressed to United States Circuit Judge William Denman. Judge Denman denied your petition on the same day. Since a Circuit Judge has the same power to grant writs of habeas corpus as a District Judge, 28 U.S.C.A. §§ 452, 463(a), the matter has been disposed of by Judge Denman's denial of your petition.

"Your motion is denied. There is no petition of yours pending before me."

I do not agree with the holding that an application for a writ of habeas corpus addressed to one judge is to be deemed as addressed to the court of which he is a member, and hence becomes subject to a rule of court transferring the case, not to the court, but to some other judge to whom it is not addressed. Nor do I agree that one judge may transfer to any court or to any other judge his jurisdiction to entertain such an application addressed to him. Cf. Chow Loy v. United States, 1 Cir., 112 F. 354, 359, and cases cited; Carper v. Fitzgerald, 121 U.S. 87, 89, 7 S.Ct. 825, 30 L.Ed. 882.

The exact contrary seems the necessary construction of the statutes creating jurisdiction to entertain such petitions. In each the distinctions of such jurisdiction between courts and between one judge and another are clearly made.

28 U.S.C.A. § 454: "Application for; complaint in writing. Application for writ of habeas corpus shall be made to the court, or justice, or judge authorized to issue the same, by complaint in writing, signed by the person for whose relief it is intended, setting forth * * *."

§ 455: "Allowances and direction. The court, or justice, or judge to whom such application is made shall forthwith award a writ of habeas corpus, unless...