Transportation of Federal Prisoners to State Courts Pursuant to Writs of Habeas Corpus, 80-92

CourtOpinions of the Office of Legal Counsel of the Department of Justice
Citation4 Op. O.L.C. 719
Decision Date25 July 1980
Docket Number80-92
PartiesTransportation of Federal Prisoners to State Courts Pursuant to Writs of Habeas Corpus.

4 Op. O.L.C. 719

Transportation of Federal Prisoners to State Courts Pursuant to Writs of Habeas Corpus.

No. 80-92

United States Department of Justice

July 25, 1980

Larry L. Simms Deputy Assistant Attorney General Office of Legal Counsel

Transportation of Federal Prisoners to State Courts Pursuant to Writs of Habeas Corpus

The Attorney General needs no specific statutory authorization in order to surrender custody of a federal prisoner to state authorities for transportation to a state court pursuant to a writ of habeas corpus, and no federal statute prohibits it.

Surrendering a federal prisoner to the temporary physical custody and control of state of Ticers does not result in a loss of federal jurisdiction over the prisoner.

Escape of a federal prisoner temporarily in the custody of state authorities pursuant to the direction of the Attorney General would violate the federal escape statute, 18 U.S.C. §751.


This responds to your request for our opinion whether federal prisoners may be released to the physical custody of state law enforcement officers for transportation to a state court pursuant to the issuance of a writ of habeas corpus ad testificandum or ad prosequendum.[1] You also have requested our opinion whether escape by a prisoner thus released could be prosecuted as escape from federal custody under 18 U.S.C. §751 (Supp. I 1977).

The United States Marshals Service (USMS) concludes that the Bureau of Prisons (BOP) may relinquish custody temporarily to state officials on state court writs without waiving federal jurisdiction or violating federal law. The USMS further concludes that a federal prisoner who escapes from such temporary state custody has violated 18 U.S.C. § 751. In your view, a federal prisoner may not be released from the physical custody of federal agents without specific statutory authorization, because federal custody must remain unbroken. You also suggest that if a federal prisoner who is released to state officials escapes, he could not be prosecuted under the federal escape statute.

For reasons stated more fully below, we conclude that federal jurisdiction over a prisoner committed to the custody of the Attorney General is not waived or otherwise lost if physical custody is surrendered [ 720] temporarily to state officials for the purpose of producing the prisoner in a state court pursuant to the issuance of a writ of habeas corpus ad testificandum or ad prosequendum. We conclude that specific statutory authorization is not required for such a temporary transfer of custody, and we have found no statute which expressly or impliedly prohibits it. We further conclude that escape by a federal prisoner while in the temporary custody of state officials would violate the federal escape statute.


In 1922, the Supreme Court settled the question whether a federal prisoner could be taken on a writ of habeas corpus to a state court and there prosecuted on state charges. Ponzi v. Fessenden, 258 U.S. 254 (1922). Ponzi argued, inter alia, that the state court could not try him without jurisdiction over his person and that, as a prisoner of the United States, he was "within the dominion and exclusive jurisdiction" of the United States. Id. at 258. The Court rejected this argument, describing it as "a refinement which if entertained would merely obstruct justice, " and stated:

The trial court is given all the jurisdiction needed to try and hear him by the consent of the United States, which only insists on his being kept safely from escape or from danger under the eye and control of its officer. This arrangement of comity between the two governments works in no way to the prejudice of the prisoner or of either sovereignty

Id. at 265-66. The Court emphasized that our scheme of government, with the federal government and the governments of the several states' each having their own system of courts, requires "not only definite rules fixing the powers of the courts in cases of jurisdiction over the same persons and things . . . but also a spirit of reciprocal comity and mutual assistance to promote due and orderly procedure." Id. at 259. Physical custody of the federal prisoner was not an issue in Ponzi, however. A federal agent at all times had custody, and the Court, while not expressly relying on this fact as essential to the holding, did note it.

Following the lead of Ponzi, federal courts consistently have ruled that the federal government does not lose jurisdiction over a federal prisoner if it, as a matter of comity, arranges to produce a prisoner for prosecution in state court or for service of a state sentence. See, e.g., Chunn v. Clark, 451 F.2d 1005, 1006 (5th Cir. 1971); Truesdell v. United States, 400 F.2d 859, 860 (8th Cir. 1968); Murray v. United States, 334 F.2d 616, 617 (9th Cir. 1964); Lovell v. Arnold, 391 F.Supp. 1047, 1048 (M.D. Pa. 1975); United States ex rel. Williams v. Fitzpatrick, 299 F.Supp. 260, 261 (S.D.N.Y. 1969). [ 721]

As noted in both your opinion request and the USMS memorandum, the past practice consistently has been to transport federal prisoners to state courts in the custody of a federal marshal and to require the states to reimburse the USMS for this expense. Accordingly, the question presented here, which is one of physical custody, has not been addressed directly by the courts. The cases, such as those cited above, which have considered related questions, however, have inferred that temporary transfers of physical custody also are matters of comity to be worked out between federal and state authorities.

In Allen v. Hunter, 65 F.Supp. 365 (D. Kan. 1946), for example, the court rejected the petitioner's claim that the federal government lost all jurisdiction over him when, after convicting and sentencing him, it permitted him to be returned to the Indiana State Prison. Quoting from the Tenth Circuit in Wall v. Hudspeth, 108 F.2d 865, 866 (10th Cir. 1940), the court held:

When the court of one sovereign takes a person into its custody on a criminal charge he remains in the jurisdiction of that sovereign until it has been exhausted, to the exclusion of the courts of the other sovereign. That rule rests upon principles of comity, and it exists between federal and state courts. [Cites omitted.] But either the federal or a state government may voluntarily surrender its prisoner to the other without the consent of the prisoner and in such circumstances the question of jurisdiction and custody is purely one of comity between the two sovereigns, not a personal right of the prisoner which he can assert in a proceeding of this kind

Allen v. Hunter, 65 F.Supp. at 367-68 (emphasis added). See also Young v. Harris, 229 F.Supp. 922, 924 (W.D. Mo. 1964). The Fifth Circuit in Chunn v. Clark, supra, believed it "well-established" that a prisoner has no standing to contest an agreement between two sovereigns, and thus ruled that federal authorities did not lose jurisdiction over Chunn by complying with an Alabama writ. 451 F.2d at 1006.[2] Similarly, in Potter v. Ciccone, 316 F.Supp. 703, 705 (W.D. Mo. 1970), the court stated the "well-established" rule that the federal government does not lose jurisdiction of a prisoner because it permits a state "to take the prisoner into its custody . . ." (Emphasis added.) The court continued: "Thus, while the temporary custody of the other sovereign may postpone the rights [ 722] of the first sovereign, it cannot defeat them and jurisdiction is not lost." Id. at 705-06.[3]

These issues also have arisen when state authorities have released state prisoners to the custody of federal authorities. Although in many of these cases, actual physical custody was transferred to federal authorities, the courts refused to find a loss of state jurisdiction. In Bullock v. Mississippi, 404 F.2d 75 (5th Cir. 1968), the prisoner-appellant sought release from a state detainer on the ground that by earlier transferring him to federal custody, the state had waived its right to jurisdiction over him. The court ruled that "[t]he State, by giving temporary custody to the federal authorities does so without a complete surrender of its prior jurisdiction over him." Id. at 76. See also Derengowski v. U.S. Marshal, 377 F.2d 223 (8th Cir. 1967).

These same rules apply when a prisoner is produced pursuant to a writ of habeas corpus ad testificandum. In In re Liberatore, 574 F.2d 78, 89 (2d Cir. 1978), the court held that: "any 'loan' to the second sovereignty in compliance with such a writ or any other temporary transfer of custody from the sovereignty having the prior jurisdiction cannot affect in any way whatever any final judgment of conviction already entered against the prisoner there or affect the running of the sentence imposed pursuant to that judgment." And, recently, the Ninth Circuit implemented this rule by declaring that a district judge's attempt to transfer a prisoner (who was serving concurrent federal and state sentences in state prison) from state to federal custody violated fundamental principles of comity and separation of powers. United States v. Warren, 610 F.2d 680 (9th Cir. 1980). The court wrote:

Determination of priority of custody and service of sentence between state and federal sovereigns is a matter of comity to be resolved by the executive branches of the two sovereigns . . . [T]he sovereign with priority of jurisdiction, here, the United States, may elect under the doctrine of comity to relinquish it to another sovereign. This discretionary election is an executive, and not a judicial function. [Cites omitted.]
In the federal system, the "power and discretion" to practice comity is vested in the Attorney General.

Id. at 684-85 (emphasis added).

The cases cited above establish that surrendering a prisoner to another jurisdiction for purposes of prosecution, testimony,...

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