State v. Heisler
| Decision Date | 25 March 1964 |
| Docket Number | No. 7896,7896 |
| Citation | 95 Ariz. 353,390 P.2d 846 |
| Parties | The STATE of Arizona, Appellee, v. Edward R. HEISLER, Appellant. |
| Court | Arizona Supreme Court |
Robert Pickrell, Atty. Gen., and Norman E. Green, County Atty. of Pima County, by John R. Neubauer, Deputy County Atty., for appellee.
Edward R. Heisler, in forma pauperis.
Petitioner is an inmate of a federal penitentiary in the State of Washington. On May 10, 1962, he was notified that a detainer had been placed against him by the Sheriff's Department in Pima County, Arizona, charging him with passing two forged checks. On August 7, 1962, he filed a petition for a writ of habeas corpus ad prosequendum, and demanded a trial on the check charges. This writ was denied on December 18, 1962, and this appeal was taken.
The writ of habeas corpus ad prosequendum, sought by petitioner is a little used common law writ which issues when it is necessary to remove a prisoner in order to prosecute in the proper jurisdiction where the crime was committed. 3 Bl.Comm. 130. It is much more limited than the commonly used writ of habeas corpus, which is technically a writ of habeas corpus ad subjiciendum, under which the court may make any appropriate order, including one for the release of the prisoner. 3 Bl.Comm. 131.
It is petitioner's contention that the writ must be issued to preserve his right to a speedy trial, as guaranteed by Article II, Section 24, of the Arizona Constitution, A.R.S. and the due process clause of the Fourteenth Amendment to the Federal Constitution. These issues were properly raised by the original petition before the Superior Court, and are now before this court for decision.
On principle the fact that petitioner is being detained by federal authorities would make it impossible for a state court to grant him the relief which he asks. In Ponzi v. Fessenden, 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607 (1922), the court considered the reverse of our situation. Massachusetts desired to try Ponzi, a federal prisoner, and the United States Attorney General had consented. But the court said:
'* * * Until the end of his term and his discharge, no state court could assume control of his body without the consent of the United States.' 258 U.S. at 261, 42 S.Ct. at 311, 66 L.Ed. 607.
Following the Ponzi case this court held habeas corpus will not be granted where the petitioner's state trial was delayed because he was held on federal charges, and that the proper procedure was to make a motion to dismiss the indictment or information. In re Douglas, 54 Ariz. 332, 95 P.2d 560 (1939). The burden of showing good cause for the delay is then upon the state. The court cited cases holding federal imprisonment was good cause for delay.
Congress established a procedure to handle the problem of the transfer of federal prisoners to state courts in 1940, by enacting 18 U.S.C. § 4085, which reads as follows:
' § 4085. Transfer for state offense; expense
'(a) Whenever any federal prisoner has been indicted, informed against, or convicted of a felony in a court of record of any State or the District of Columbia, the Attorney General shall, if he finds it in the public interest to do so, upon the request of the Governor or the executive authority thereof, and upon the presentation of a certified copy of such indictment, information or judgment of conviction, cause such person, prior to his release, to be transferred to a penal or correctional institution within such State or District.
'If more than one such request is presented in respect to any prisoner, the Attorney General shall determine which request should receive preference.
'The expense of personnel and transportation incurred shall be chargeable to the appropriation for the 'Support of United States prisoners."
Prior to this satute the production of a convict of the United States in the state court for trial was after the state's request, wholly a matter for the United States, through its Attorney General to determine, Marsino v. Higgins, 10 F.2d 534 (D.C.Mass.1924), affd. Marsino v. United States, 270 U.S. 627, 46 S.Ct. 206, 70 L.Ed. 768 (1926). The statute has in no way lessened the Attorney General's discretionary power.
28 U.S.C. § 2241 confers power on federal judges to issue writs of habeas corpus in the case of federal prisoners generally, but it confers no powers on state courts. In Carbo v. United States, 364 U.S. 611, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961) the court held that a federal judge in California could issue a writ of habeas corpus ad prosequendum directed to a New York City prison official, but the converse is not true without the exercise of the...
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...had filed a detainer, the defendant demanded a speedy trial. No trial had been had and no judgment rendered in Arizona. State v. Heisler, 95 Ariz. 353, 390 P.2d 846. The Court noted: that the transfer of defendant would be discretionary, and that the Court could issue no writ legally effect......