Sutherland v. Love

• Court: U.S. District Court — Eastern District of Arkansas
• Citation: Sutherland v. Love, 359 F.Supp. 983 (E.D. Ark. 1973)
• Decision Date: 21 June 1973
• Docket Number: No. LR-72-C-266.,LR-72-C-266.
• Parties: Rudy Lee SUTHERLAND, Petitioner, v. Monroe LOVE, Sheriff of Pulaski County, Arkansas, Respondent.

359 F. Supp. 983

Rudy Lee SUTHERLAND, Petitioner, v. Monroe LOVE, Sheriff of Pulaski County, Arkansas, Respondent.

No. LR-72-C-266.

United States District Court, E. D. Arkansas, W. D.

June 21, 1973.

Glenn F. Walther, Little Rock, Ark., for petitioner.

Lee Munson, Pros. Atty., and Jimmy D. Patton, Asst. Pros. Atty., Pulaski County, Little Rock, Ark., for respondent.

MEMORANDUM OPINION

HENLEY, Chief Judge.

In this habeas corpus action Rudy Lee Sutherland seeks to avoid extradition to the State of California in which State he was convicted of a felony in 1969. In 1972 he was arrested in Pulaski County, Arkansas, by the Sheriff of that County, pursuant to an extradition warrant issued by the Governor of Arkansas pursuant to a requisition signed by the Governor of California.¹ Respondent Sheriff takes the position that petitioner is not entitled to relief, and that his petition should be dismissed. Petitioner was admitted to bail in connection with a habeas corpus proceeding instituted by him in the Circuit Court of Pulaski County following his arrest, which proceeding will be referred to again, and he has remained at liberty on bail during the pendency of this proceeding.

The facts of the case appear to be essentially undisputed.

Petitioner was charged by information in the Superior Court of Orange County, California, with having violated Section 484-487 of the California Penal Code.² In December 1969 petitioner was convicted and appeared before the Court for sentencing on March 13, 1970, at which time he was represented by counsel.

The Superior Court placed petitioner on probation for three years, but the probation was conditioned upon petitioner's serving nine months in jail. There were also a number of other conditions, one of which was that after his release from jail he was not to leave the State without permission.

Petitioner immediately appealed the conviction, and posted an appeal bond in the sum of $6,250 and remained at liberty pending determination of the appeal, Very shortly thereafter petitioner returned to Arkansas which seems to have been his original home and has remained here since then. He may or may not have had the permission or the qualified permission of probation authorities in California to leave the State. The Court notes, however, that petitioner's appeal bond did not restrict petitioner's movements, and he, of course, was appealing the entire judgment of the Superior Court.

On April 21, 1970, a Deputy Probation Officer of Orange County filed in the Superior Court a petition for the issuance of a warrant of arrest for petitioner as a probation violator. It was alleged that on March 16, 1970, petitioner had violated his probation by failing to report to the Probation Department for indoctrination and application for transfer through the Interstate Compact Agreement, and by failing to sign and return to the Probation Department copies of the Interstate Compact "Agreement To Return" received by him through certified mail on April 1, 1970, thereby preventing the transfer of his supervision pursuant to the Interstate Compact. The prayer was that petitioner's probation be revoked, and that a warrant be issued for his arrest so that he might be brought before the Court to be dealt with as provided by law.

On April 28, 1970, the Superior Court Judge entered an order revoking the probation and directing that a warrant for petitioner's arrest be issued. This proceeding appears to have been without any prior notice to either petitioner or his attorney, and there seems to have been no hearing on the petition for revocation.

Between 1970 and 1972 California made two efforts to extradite petitioner but was unsuccessful due to the pendency of the appeal from his original conviction. At length on March 13, 1972, the Attorney General of California filed a motion to dismiss the appeal in the California Court of Appeals on the ground that petitioner had violated his probation. That motion was granted on the same day. Here again there seems to have been no notice to petitioner or to his attorney that the State of California was moving to dismiss the appeal.

With the appeal dismissed, California made its third effort to extradite petitioner, and this time the Governor of Arkansas honored the request and issued his warrant upon which petitioner was arrested by respondent.

Petitioner promptly filed a petition for a writ of habeas corpus in the Circuit Court of Pulaski County, and a hearing on the petition was held on November 14, 1972. While the record in this case does not contain a copy of the petition filed in the Circuit Court it is inferable that petitioner alleged in that Court as here that it would be violative of federally protected rights to extradite him to California in the circumstances that have been outlined.

Judging from an order entered by the Circuit Court and from certain other materials, it appears that the Circuit Judge was of the view that he could not look beyond the face of the extradition warrant, and that the proceedings should be held in abeyance in order to permit petitioner to apply to this Court for relief, as he did on November 28, 1972. Thereafter, the Circuit Court on January 2, 1973, dismissed the petition filed in the Circuit Court. That procedure appears to have been satisfactory to petitioner since he made no effort to appeal from that order to the Supreme Court of Arkansas as he might have done.

The petition in this Court alleges, among other things:

". . . That the Petitioner is faced on the one hand with being extradited to the State of California to comply with the Order of Probation entered at the time of his conviction to begin compliance with such Order, including the nine (9) months confinement in the County Jail, and other restrictive requirements of the Probation Order even though he filed his Notice of Appeal and made the Bond required by the Court, and being denied on the other hand his right of Appeal in an attempt to upset the judgment of the lower court, which Appeal has been dismissed because of his failure to comply with the Probation Order. That in consequence of the aforesaid the Petitioner is unlawfully restrained of his liberty in violation of the Fifth Amendment and the Fourteenth Amendment to the Constitution of the United States. . . ."

The Court is confronted at the outset with the question of whether petitioner has exhausted State remedies as required by 28 U.S.C.A., section 2254, which statute is applicable to extradition proceedings. See Dye v. Johnson, 1949, 338 U.S. 864, 70 S.Ct. 146, 94 L.Ed. 530; Giles v. Merrill, 10 Cir., 1963, 322 F.2d 786; Tickle v. Summers, 4 Cir., 1959, 270 F.2d 848; Davis v. O'Connell, 8 Cir., 1951, 185 F.2d 513.

This aspect of the case has troubled the Court to some extent since it is well established that federal subject matter jurisdiction cannot be conferred by consent, and it is also well settled that available State remedies cannot be by-passed deliberately for the purpose of obtaining a federal forum for the litigation of federal questions which a State court has jurisdiction to determine. Warden v. Hayden, 1967, 387 U.S. 294, 297, f. n. 3, 87 S.Ct. 1642, 18 L.Ed.2d 782; Fay v. Noia, 1963, 372 U.S. 391, 438-440, 83 S.Ct. 822, 9 L.Ed.2d 837; Frazier v. Roberts, 8 Cir., 1971, 441 F. 2d 1224, 1229-1230.

The Court considers that the Circuit Court had as much jurisdiction as this Court possesses to pass upon the claim of petitioner, and that technically he has perhaps not exhausted State remedies. However, the Court is not willing to say that petitioner and his attorney have deliberately by-passed the State courts, and in the exercise of the...