Thompson v. Bannan

• Decision Date: 01 February 1962
• Docket Number: No. 14518.,14518.
• Citation: 298 F.2d 611
• Parties: Andrew THOMPSON, Petitioner-Appellant, v. William H. BANNAN, Warden, State Prison of Southern Michigan, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

298 F.2d 611 (1962)

Andrew THOMPSON, Petitioner-Appellant, v. William H. BANNAN, Warden, State Prison of Southern Michigan, Respondent-Appellee.

No. 14518.

United States Court of Appeals Sixth Circuit.

February 1, 1962.

David N. Gorman, Cincinnati, Ohio, for appellant.

Joseph B. Bilitzke, Sol. Gen. of Michigan, Lansing, Mich., (Paul L. Adams, Atty. Gen., on the brief), for appellee.

Before CECIL, WEICK and O'SULLIVAN, Circuit Judges.

CECIL, Circuit Judge.

This is an appeal from an order of the District Court for the Eastern District of Michigan, Southern Division, denying the appellant's petition for a writ of habeas corpus. The District Court considered the petition on questions of law and dismissed it without the submission of evidence. We, therefore, look to the petition for a statement of facts.

The pertinent facts are as follows: Andrew Thompson, the appellant, is now confined in the State Prison of Southern Michigan, at Jackson, Michigan. The appellant was arrested in New York City on or about September 9, 1955, on a charge of petit larceny. At this time he was wanted in Michigan for violation of a two and one-half years' parole which had been granted to him on November 1, 1951, and on a charge of armed-robbery committed in Oakland County, Michigan, on November 30, 1953. At the same time he was wanted in Chicago, Illinois, on a murder charge.

The New York police notified authorities in both states of the arrest and advised the Chicago authorities that the F.B.I. had a detainer on Thompson for unlawful flight to avoid prosecution.

He was returned to Michigan and arraigned in the United States District Court, at Detroit. He was given an opportunity to get a lawyer and subsequently the District Court, upon being advised that the Prosecuting Attorney of Oakland County agreed that he be turned over to the Illinois authorities, issued an order surrendering Thompson to the sheriff of Wayne County, Michigan, and dismissing the federal charges.

The appellant through his attorney requested an extradition hearing before the governor. Upon requisition of the governor of Illinois, the governor of Michigan surrendered the appellant to the Illinois authorities. It is alleged that he was held in the Cook County jail for nearly a year, that he was then tried on the murder charge and acquitted.

After this, on November 28, 1956, the prosecuting attorney of Oakland County, Michigan, made request to the governor of Michigan for the extradition of appellant from the state of Illinois. The governor of Michigan made demand on the governor of Illinois and through this procedure the appellant was returned to Oakland County, Michigan. He alleges that, "On his last appearance, in the Criminal Court of Cook County," in the extradition proceedings, "he was told by the Court, that counsel would be appointed to aid him in said matters, and, that he would be heard the following morning, but instead the following morning, officers from the Bloomfield-Hills, Michigan Police Department, took Petitioner into custody, put him in a plane, and flew him back to Michigan." He also alleges that the police officer in Michigan misrepresented the facts in the affidavit for extradition by stating that the appellant was transferred directly to Chicago whereas he was first taken to Michigan and then to Chicago.

In Michigan, counsel was appointed to defend the appellant and he was tried on the alleged armed-robbery charge before the Circuit Court of Oakland County. He was convicted and on February 11, 1957, sentenced to a term of 20-40 years in the State Prison where he is now confined. Upon his commitment he was required to serve out his time for the parole violation, previously mentioned, until November 13, 1960.

His petition for a writ of habeas corpus in the Supreme Court of Michigan was denied on June 17, 1958. Petition for writ of certiorari to the Supreme Court of the United States was denied on October 20, 1958. 358 U.S. 868, 79 S.Ct. 102, 3 L.Ed.2d 101. Upon denial of petition for writ of habeas corpus in the District Court, this Court issued a certificate of probable cause, permitted an appeal in forma pauperis and appointed counsel to represent the appellant.

Upon these facts counsel for the appellant presents two questions. One, that Thompson was illegally taken back to Michigan through extradition proceedings and two, that under any circumstances Michigan was forever barred from prosecuting him after it surrendered him to Illinois with the robbery charge pending.

The appellant, who represented himself in the District Court, through his concessions in his answer to the respondent's motion to dismiss, poses only the second question. He accepts the law of the case of Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 and the rule announced in Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421. He concedes that there is no issue as to the manner of his return to Michigan after his acquittal in Illinois.

Assuming that the appellant was subject to trial in Michigan on the armedrobbery charge, we will first discuss his return to that state.

In the Whittington case, 34 Cal.App. 344, 167 P. 404, cited on behalf of the appellant, Whittington, while in the custody of Texas authorities on a criminal charge of that state, was surrendered to California on a charge of murder, through extradition proceedings. The murder charge was not pressed in California or it was dismissed and the Texas authorities sought to have him returned to Texas by extradition to face the charge that was pending at the time he was turned over to California. The governor of California issued a warrant. Whittington applied for a writ of habeas corpus in California. His application was sustained. The court held that having been taken to California against his will, it could not be said that he was a fugitive from justice within the meaning of section 2 of Article IV of the Constitution of the United States.

While the rule announced in this case has substantial support, it was said in Moulthrope v. Matus, hereinafter cited, that it is not generally followed. The facts of appellant's case are different as he well recognized. At the time of the appellant's trial for armed-robbery in Michigan, he was within the jurisdiction of the court. This Court will not inquire into the manner of procedure by which he was brought into the jurisdiction of the trial court. It makes no difference whether it was by force or by faulty or incomplete extradition proceedings.

In the view we take of this case, the alleged misrepresentation in the affidavit is not material. We do not condone a false statement intentionally made but this could have been simply an error and we do not condemn without knowing.

In Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952), the Court said, at page 522, 72 S.Ct. at page 511: "This Court has never departed from the rule announced in Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 30 L.Ed. 421, that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a `forcible abduction.' No persuasive reasons are now presented to justify overruling this line of cases. They rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will."

In this case the defendant charged that, "while he was living in Chicago, Michigan officers forcibly seized, handcuffed, blackjacked and took him to Michigan."

In Ker v. Illinois, 119 U.S. 436, the court said, at page 441, 7 S.Ct. 225, at page 228, 30 L.Ed. 421: "It is sufficient to say, in regard to that part of this case, that when the governor of one State voluntarily surrenders a fugitive from the justice of another State to answer for his alleged offences, it is hardly a proper subject of inquiry on the trial of the case to examine into the details of the proceedings by which the demand was made by the one State and the manner in which it was responded to by the other. The case does not stand, when the party is in court and required to plead to an indictment, as it would have stood upon a writ of habeas corpus in California, or in any States through which he was carried in the progress of his extradition, to test the authority by which he was held; and we can see, in the mere fact that the papers under which he was taken into custody in California were prepared and ready for him on his arrival from Peru, no sufficient reason for an abatement of the indictment against him in Cook County, or why he should be discharged from custody without a trial." (Emphasis added.) See also Cook v. Hart, 146 U.S. 183, 13 S.Ct. 40, 36 L.Ed. 934; Lascelles v. Georgia, 148 U.S. 537, 13 S.Ct. 687, 37 L.Ed. 549; Pettibone v. Nichols, 203 U.S. 192, 27 S.Ct. 111, 51 L.Ed. 148.

The State of Illinois has adopted the Uniform Extradition Act. By section 27 of chapter 60, Smith-Hurd Illinois Statutes, Annotated, it is provided that one arrested on an extradition warrant issued by an asylum state must be taken before a judge of the circuit court of the county wherein he is arrested, who shall inform him of his rights. This section further provides, "and if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus." Had such an action been brought in Illinois, the appellant would have been within the ambit of the Whittington case above cited.

We find then that the appellant, having been returned to Michigan, was...