Stamphill v. Johnston

• Decision Date: 29 June 1943
• Docket Number: No. 10369.,10369.
• Citation: 136 F.2d 291
• Parties: STAMPHILL v. JOHNSTON.
• Court: U.S. Court of Appeals — Ninth Circuit

136 F.2d 291 (1943)

STAMPHILL v. JOHNSTON.

No. 10369.

Circuit Court of Appeals, Ninth Circuit.

May 24, 1943.

Rehearing Denied June 29, 1943.

Dale Stamphill, of Alcatraz, Cal., pro se.

Frank J. Hennessy, U. S. Atty., and A. J. Zirpoli, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.

Before WILBUR, MATHEWS, and STEPHENS, Circuit Judges.

WILBUR, Circuit Judge.

This is an appeal in forma pauperis from an order of the District Court of the United States for the Northern District of California denying a petition for writ of habeas corpus. Petitioner, hereinafter called the appellant, alleges that he is a prisoner in the custody of the respondent, James A. Johnston, Warden of the United States Penitentiary, Alcatraz, California, under commitment issued out of the District Court of the United States for the Western District of Oklahoma, pursuant to sentence of that court upon judgment of conviction therein of an offense against the laws of the United States. He claims that the sentence of the District Court which he is now serving is subject and subordinate to a sentence of life imprisonment theretofore imposed upon him by a state court of Oklahoma. The appellant was serving the Oklahoma sentence when he was surrendered by the warden of the State Penitentiary of Oklahoma to the United States marshal for the Western District of Oklahoma for trial in the federal court which resulted in his conviction and the sentence he is now serving in the federal penitentiary at Alcatraz.

Appellant's claim that he should be restored to the state penitentiary to finish the service of the state sentence there before being required to serve his federal sentence in the United States penitentiary at Alcatraz is based in part upon the form of the writ of habeas corpus ad prosequendum under which he was delivered to the United States marshal for trial in the federal court, and in part upon the theory that the state court having first acquired jurisdiction over him he has a right to insist upon his imprisonment under the state judgment of conviction notwithstanding a subsequent conviction for a federal offense.

The writ of habeas corpus issued by the federal court for the Western District of Oklahoma contains the following provision: "* * * to proceed to the Oklahoma State Penitentiary at McAlister Oklahoma, and there take * * * Dale Stamphill * * * now detained in said institution, and keep them in your custody and bring them before the United States District Court for the Western District of Oklahoma, at Oklahoma City, Oklahoma, on Oct. 25th, 1937, at 10:00 o'clock a. m., so that the said Dale Stamphill, * * * may be tried in this cause now pending in this court, wherein they are charged with violation of Section 408a, Title 18 U.S.C.A. And when final disposition has been made of the above styled and numbered cause, you shall return the said defendants to the Oklahoma State Penitentiary at McAlister, Oklahoma."

The United States marshal, in his return of the writ of habeas corpus ad prosequendum, stated that he "placed the appellant in the Oklahoma County jail to await further action of the court as within I am commanded."

Defendant was tried in the federal court on October 25th and 26th, 1937, and convicted of violation of 18 U.S.C.A. § 408a, and was sentenced to life imprisonment.

On October 29, 1939, appellant was taken to the United States penitentiary at Leavenworth, Kansas, by the marshal on the commitment thereto and has since been transferred to the United States penitentiary at Alcatraz where he is now confined.

There is no doubt that the state of Oklahoma, having first acquired jurisdiction over the appellant, was entitled to retain him in custody until he had finished his sentence and could not be required to surrender him to the custody of the United States marshal for trial in the federal court for an offense committed in violation of federal law. Ponzi v. Fessenden, 1922, 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607, 22 A.L.R. 879. Cf. Ableman v. Booth, 21 How. 506, 62 U.S. 506, 16 L.Ed. 169, and 28 U.S.C.A. § 453. However, in this case the state authorities did in fact surrender the appellant to the federal authorities and thus in effect gave the federal court jurisdiction to try the appellant and to render judgment of imprisonment against him and to execute that judgment. The personal presence of a defendant before a District Court gives that court complete jurisdiction over him, regardless of how his presence was secured, whether by premature arrest (Malone v. United States, 9 Cir., 67 F.2d 339), wrongful seizure beyond the territorial jurisdiction of the court (Ford v. United States, 9 Cir., 10 F.2d 339, 344; United States ex rel. Voigt v. Toombs, 5 Cir., 67 F.2d 744), false arrest (Ex parte Johnson, 167 U.S. 120, 17 S.Ct. 735, 42 L.Ed. 103; Albrecht v. United States, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505) or extradition arising out of an offense other than the one for which he is being tried. Cardigan v. Biddle, 8 Cir., 10 F.2d 444. The court cannot decline to exercise this jurisdiction. "Courts of the United States are bound to proceed to judgment * * * in every case to which their jurisdiction extends. They cannot abdicate their authority or duty in any case in favor of another jurisdiction." Hyde v. Stone, 20 How. 170, 61 U.S. 170, 175, 15 L.Ed. 874. However the defendant was brought before the District Court, once he was there it had and was bound to exercise complete jurisdiction over him. It is clear that the federal authorities had actual possession of appellant during his trial in the federal court. Jurisdiction resulted from that possession, and it follows that any question concerning the rightfulness of what was done in the exercise of that jurisdiction is merely a question of comity. Such a question cannot be raised by habeas corpus,...