UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: August 6, 1969.
UNITED STATES OF AMERICA EX REL. DENNIS P. KELLY, APPELLANT,
JAMES F. MARONEY, SUPERINTENDENT, STATE CORRECTIONAL INSTITUTION, PITTSBURGH, PENNSYLVANIA
Biggs, Freedman and Stahl, Circuit Judges.
Opinion OF THE COURT
STAHL, Circuit Judge.
This is an appeal from an order of the district court dismissing without an evidentiary hearing appellant's petition for a writ of habeas corpus on the ground that state remedies had not been exhausted. The facts relevant to the present appeal are briefly as follows:
On April 28, 1966, while incarcerated in Butler County pending imposition of sentence on charges of issuing worthless checks, appellant, who had pleaded guilty to the charges, escaped from prison. He was arrested on April 29, 1966, in Tonawanda, New York, as a fugitive from justice and, following the culmination of proceedings in the New York courts in which appellant challenged his arrest and extradition, he was returned to Pennsylvania.
In July 1966, appellant pleaded guilty to charges of prison breach and larceny of an automobile, which evidently arose in connection with the prison breach, and was sentenced to terms of from four to eight years and two to four years on the respective charges, the sentences to run consecutively. Some time after the imposition of sentence, appellant filed a Pennsylvania Post Conviction Hearing Act petition attacking his conviction and sentence on a number of grounds, including the denial of effective assistance of counsel and the claim that his guilty plea had been unlawfully induced.*fn1 Subsequent to the filing of the petition, the Butler County court set aside appellant's guilty plea, vacated the sentences and ordered a new trial.
On January 25, 1968, Kelly again pleaded guilty to the prison breach charge and was sentenced to a term of four to eight years. The larceny charge was nolle prossed.
On February 7, 1968, appellant filed a habeas corpus petition in the district court, seeking release from confinement on the ground that he had been unlawfully extradited from New York to Pennsylvania. The allegations offered in support of his claim were, first, that his arrest in New York was illegal because the arresting officers lacked probable cause to believe he was a fugitive when they apprehended him, and secondly, that he was deprived of his right to appeal to the appellate courts of New York because of the incompetence of his appointed counsel.*fn2
The district court viewed the extradition claims of the petition as an indirect attack on appellant's prison breach conviction. On February 28, 1968, the petition was dismissed below because it did not appear that appellant had availed himself of post-conviction remedies in the state courts with respect to the claims asserted in the federal habeas petition. The court also said that there was no reason "to conclude that appropriate consideration will not be given to the complaint of petitioner if a proceeding is filed in the state jurisdiction."*fn3
We affirm, but not directly on the grounds stated by the court below.
In the pro se briefs presented to this court, appellant argues that the district court erred in applying the principle of exhaustion of state remedies to a challenge of the validity of the extradition proceedings.*fn4 He contends that under 28 U.S.C. § 2241, the district court should have dealt with the merits of the extradition claim because there are no available remedies in the Pennsylvania state courts.*fn5
We agree. The state cases do not afford relief from allegedly illegal proceedings in the asylum state prior to extradition to Pennsylvania. Dow's Case, 18 Pa. 37 (1851); Commonwealth ex rel. Howard v. Claudy, 172 Pa.Super. 574, 93 A.2d 906, 908 (1953). See also United States ex rel. Kelly v. Fullam, 224 F. Supp. 492, 494 (E.D.Pa.1963).
Thus where it is clear that state law affords no remedy for a claimed assertion of violation of constitutional rights, state remedies may be considered exhausted under 28 U.S.C. § 2254. A frequent example occurs in extradition proceedings where a fugitive asserts in the asylum state a claim of violation of constitutional rights in the demanding state, the reverse of the situation here. The basis for finding exhaustion in such cases stems from the realization that to require resort to the state courts when settled state law precludes examination into the circumstances of the claim would serve no purpose. See Whippler v. Balkcom, 342 F.2d 388, 392 (5th Cir. 1965); United States ex rel. Tucker v. Donovan, 321 F.2d 114, 116 (2d Cir. 1963); United States ex rel. Proctor v. New York, 229 F. Supp. 696, 698 (S.D.N.Y.1964).
Appellant fares no better in the federal courts, however, for they would also reject his extradition claims. See Ker v. Illinois, 119 U.S. 436, 444, 7 S. Ct. 225, 30 L. Ed. 421 (1886); Hunt v. Eyman, 405 F.2d 384 (9th Cir. 1968); United States ex rel. Huntt v. Russell, 285 F. Supp. 765, 767 (E.D.Pa.1968), aff'd per curiam, 406 F.2d 774 (3d Cir. 1969); United States ex rel. Owens v. Russell, 260 F. Supp. 638 (M.D.Pa.1966); United States ex rel. Kelly v. Fullam, supra.
The basis for denying relief when confinement stems from conviction following an allegedly illegal extradition is the rule 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.' * * *" Frisbie v. Collins, 342 U.S. 519, 522, 72 S. Ct. 509, 511, 96 L. Ed. 541 (1952). In that landmark case the Court stated the reason for the rule as follows:
The rationale of the Frisbie case is reinforced here by the fact that appellant has twice pleaded guilty to the offense for which he was extradited. See United States ex rel. Owens v. Russell, supra.
Even if the district court is correct and appellant did have state remedies which he failed to pursue, we have previously held that the federal habeas corpus statute "permits denial of a petition for the Great Writ on its merits, though state remedies may not be exhausted." (Emphasis added.) United States ex rel. Drew v. Myers, 327 F.2d 174, 183 (3d Cir.), cert. denied, 379 U.S. 847, 85 S. Ct. 88, 13 L. Ed. 2d 52 (1964). See also Commonwealth of Pennsylvania ex rel. Craig v. Maroney, 348 F.2d 22, 33 (3d Cir. 1965), cert. denied, 384 U.S. 1019, 86 S. Ct. 1966, 16 L. Ed. 2d 1042 (1966); In re Ernst, 294 F.2d 556, 561-562 (3d Cir.), cert. denied, 368 U.S. 917, 82 S. Ct. 198, 7 L. Ed. 2d 132 (1961); United States ex rel. Darcy v. Handy, 203 F.2d 407, 421 (3d Cir. 1953); King v. Beto, 291 F. Supp. 946, 949 (N.D.Tex.1968).
For the foregoing reasons the order of the district court dismissing the petition for habeas corpus will be affirmed.