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November 15, 1976

WILLIAM LOUISE THOMAS, 6955 Wister Street, Philadelphia, Pa.
EDWARD H. LEVI, Attorney General of the United States, United States Courthouse, 601 Market Street, Philadelphia, Pa. and GERALD M. FARKAS, Northeast Regional Director of the Bureau of Prisons, Scott Plaza #2 and CARSON MARKELY, Warden, Federal Criminal Institution, Alderson, West Virginia

The opinion of the court was delivered by: DITTER


 This petition for a writ of habeas corpus presents a question involving the construction of the Federal Extradition Act *fn1" and the Interstate Agreement on Detainers Act. *fn2" For the reasons which follow, I conclude that the relief petitioner seeks must be denied.

 William Louise Thomas is a federal prisoner whose temporary custody for the purpose of disposing of outstanding criminal charges is sought by the State of New Jersey. Thomas was indicted by a federal grand jury in this district for narcotics violations. After her arrest on the federal charges, Thomas surrendered *fn3" to state authorities in Philadelphia pursuant to a warrant based on a New Jersey indictment growing out of the same narcotics transactions which triggered the federal charges. She refused to waive extradition to New Jersey. A hearing pursuant to Pennsylvania's version of the Uniform Extradition Act, *fn4" 19 P.S. § 191.1 et seq., was scheduled for November 13, 1975, before a Philadelphia Municipal Court judge, but was continued when the Commonwealth of Pennsylvania and the State of New Jersey failed to produce documents required under that Act. Thereafter the hearing was rescheduled and then continued on two additional occasions when the state authorities failed to produce the necessary material. Finally, on January 12, 1976, Thomas was discharged from custody by Municipal Court Judge Joseph P. Braig because the state authorities still had not filed the documents required by the Uniform Act.

 On February 17, 1976, the Honorable Daniel H. Huyett, III, of this court sentenced petitioner to a three year term of imprisonment on the federal indictment *fn5" and she was committed to the Federal Reformatory for Women at Alderson, West Virginia. Shortly after Thomas' arrival at Alderson, New Jersey lodged a detainer with the authorities there based on the same charges which had been the subject of the earlier, unsuccessful Uniform Act proceedings. The transmittal letter accompanying the detainer asked whether petitioner would "waive rendition back to the State of New Jersey on Inter-State Agreements of Detainers," advising that if not, New Jersey would extradite. However, when Thomas refused to waive extradition, New Jersey sought temporary custody pursuant to Article IV(a) of the Interstate Agreement. *fn6" In order to prevent her imminent transfer to New Jersey, plaintiff sought and obtained a restraining order from the Honorable John B. Hannum of this court. That suit was later dismissed without prejudice pursuant to a stipulation under the terms of which petitioner was to be afforded a hearing before the Regional Director of the Bureau of Prisons to contest the legality of her delivery to New Jersey authorities.

 The evidence presented at the hearing consisted of a copy of the New Jersey indictment together with a request for temporary custody properly approved as required by Article IV(a) of the Interstate Agreement, plus virtually uncontradicted testimony establishing that petitioner was in fact the person named in the indictment. *fn7" Thomas offered no evidence, but relied on the legal argument that the absence of a warrant issued by the Governor of New Jersey precluded her transfer to that state. *fn8"

 Following the hearing, the Regional Director of the Bureau of Prisons issued a decision granting New Jersey's request for temporary custody pursuant to the Interstate Agreement. In response to the contention of counsel, the Regional Director concluded that "the absence of a 'governor's warrant' does not appear to preclude delivery of William Louise Thomas to the State of New Jersey under the Interstate Agreement on Detainers." *fn9" Not satisfied with the Regional Director's decision, Thomas instituted the present habeas corpus action.

 Petitioner contends that the absence of a governor's warrant from New Jersey would allow her to resist extradition successfully under the Extradition Act, and therefore that she may not be turned over to that state pursuant to the Interstate Agreement unless a governor's warrant is first obtained. In other words, it is petitioner's position that all the rights and defenses to extradition existing under the Extradition Act are to be incorporated into the Interstate Agreement. Petitioner draws support for this proposition from several sources. First, she argues that the Interstate Agreement was designed to expand, not contract, the rights of prisoners subject to detainers, see United States ex rel. Esola v. Groomes, 520 F.2d 830 (3d Cir. 1975), and asserts that construing the Interstate Agreement so as to dispense with rights existing under the Extradition Act would be inconsistent with this objective. Although the Interstate Agreement does not designate what, if any, substantive grounds may be used to contest a prisoner's delivery *fn10" nor the procedure to be followed in making such a challenge, Thomas points to Article IV(d) which provides:


Nothing contained in this article shall be construed to deprive any prisoner of any right which he may have to contest the legality of his delivery as provided in paragraph (a) hereof . . . *fn11"

 In petitioner's view, this provision indicates that the Interstate Agreement left her rights under the Extradition Act intact. Finally, Thomas supports her position by a comparison of the terms used in Article III of the Interstate Agreement, which governs prisoner-initiated disposition requests, with those used in Article IV, which governs requests initiated by a state. Article III(e) says:


Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall also be deemed to be a waiver of extradition with respect to any charge or proceeding contemplated thereby or included therein . . . . (emphasis added).

 No similar language is found in Article IV. Petitioner contends the absence of such terms in Article IV shows that where the state is the one initiating the request for custody, it must meet the requirements of the Extradition Act.

 Putting to one side for the moment the Interstate Agreement, I note that petitioner is correct in arguing that in an Extradition Act proceeding the absence of a governor's warrant from the demanding state would allow the person sought to block extradition. Section 3182 provides, inter alia, that the demand of a state seeking extradition of a fugitive must be "certified as authentic by the governor or chief magistrate of the State or Territory from which the person so charged has fled." And as judicially construed, the Extradition Act allows one held for extradition to seek review by way of a habeas corpus petition, see Illinois ex rel. McNichols v. Pease, 207 U.S. 100, 28 S. Ct. 58, 52 L. Ed. 121 (1907), in which one of the questions that may be raised is " .. that the extradition papers are not in order, or are without proper authentication by the demanding state's executive authority." R. Sokol, Federal Habeas Corpus § 4.2C, at 47 (2d ed. 1969), quoting Note, Extradition, Habeas Corpus, supra, 74 Yale L.J. at 91; Appleyard v. Massachusetts, 203 U.S. 222, 27 S. Ct. 122, 51 L. Ed. 161, 163 (1906); Roberts v. Reilly, 116 U.S. 80, 6 S. Ct. 291, 29 L. Ed. 544, 549 (1885); United States ex rel. Grano v. Anderson, supra, 446 F.2d at 279 (Van Dusen J., dissenting). *fn12" But, as will be seen below, the absence of a governor's warrant affords Thomas no basis for relief under the circumstances present here.

 Central to Thomas' legal argument in this case is the assumption that in the absence of the Interstate Agreement, the Extradition Act and the constitutional provision which it implements would govern the transfer of a person from federal to state custody from this assumption, petitioner then advances the arguments discussed above as reasons why the rights conferred by the Extradition Act have not been overridden by the Interstate Agreement. Unfortunately for the petitioner, the underlying assumption that the Extradition Act is applicable to the transfer of an individual from federal to state custody is faulty. *fn13"

 The Extradition Act was originally passed in 1793 to implement Article IV, Section 2, Clause 2 of the Constitution which in turn applies only to the extradition of fugitives among the several states. *fn14" Although the Extradition Act *fn15" extends the right to extradite to territories *fn16" and the obligation to deliver up fugitives to territories *fn17" and district, *fn18" it says nothing about persons subject to the custody of the federal government.

 More importantly, an examination of the purpose and nature of the extradition obligation reveals its inapplicability to the transfer of custody from the federal government to a state. In Appleyard v. Massachusetts, supra, the Court explained the nature of this obligation in the following terms:


The constitutional provision relating to fugitives from justice, as the history of its adoption will show, is in the nature of a treaty stipulation entered into for the purpose of securing a prompt and efficient administration of the criminal laws of the several states, -- an object of the first concern to the people of the entire country, and which each state is bound, in fidelity to the Constitution, to recognize. A faithful, vigorous enforcement of that stipulation is vital to the harmony and welfare of the states. And while a state should take care, within the limits of the law, that the rights of its people are protected against illegal action, the judicial authorities of the Union should equally take care that the provisions of the Constitution be not so narrowly interpreted as to enable offenders against the laws of a state to find a permanent asylum in the territory of another state. (Emphasis added.)

 51 L. Ed. at 163; see Kentucky v. Dennison, 65 U.S. (24 How.) 66, 16 L. Ed. 717 (1861). *fn19" And in Biddinger v. Commissioner of Police, 245 U.S. 128, 133, 38 S. Ct. 41, 43, 62 L. Ed. 193 (1917), the Court stated that the constitutional and statutory provisions were not to be "construed narrowly and technically . . ., as if they were penal laws, but liberally to effect their important purpose," which was


to eliminate, for this purpose, the boundaries of states, so that each may reach out and bring to speedy trial offenders against its laws from any part of the land.

 Id. at 132-33, 38 S. Ct. at 42, 62 L. Ed. 193.

 This historical objective of extradition -- to prevent the territorial boundaries of a state's sovereignty from frustrating its efforts to bring to justice those who violate its laws -- obviously has no application to the dual or "vertical" territorial sovereignty which characterizes the federal-state relationship. Cf. Abbate v. United States, 359 U.S. 187, 79 S. Ct. 666, 3 L. Ed. 2d 729 (1959); Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L. Ed. 2d 684 (1959).

 Furthermore, to apply the Extradition Act to the federal government would be to impose on it an obligation to deliver up a person within its exclusive jurisdiction on the demand of a state. This is an obligation from which the federal government has long been immune by virtue of the Supremacy Clause. See Ponzi v. Fessenden, 258 U.S. 254, 261, 42 S. Ct. 309, 311, 66 L. Ed. 607 (1922); Tarble's Case, 80 U.S. (13 Wall) 397, 20 L. Ed. 597 (1871); Ableman v. Booth, 62 U.S. (21 How.) 506, 16 L. Ed. 169 (1858); United States ex rel. Fort v. Meiszner, 319 F. Supp. 693, 695 (N.D. Ill. 1970); Quillar v. United States, 272 F. Supp. 55, 56 (W.D.Mo. 1967). To be sure, the United States may waive its immunity from state process and consent to have prisoners in its custody turned over to a state. Ponzi v. Fessenden, supra; Little v. Swenson, 282 F. Supp. 333, 336 (W.D. Mo. 1968); Quillar v. United States, supra. *fn20" It has in fact expressly done so by adopting the Interstate Agreement. Esola, supra, 520 F.2d at 835 and n. 17. But in the absence of an express indication that Congress intended the Extradition Act to operate as such a waiver, it would be inappropriate to apply its terms to the federal government.

 For these reasons, I conclude that the Extradition Act does not apply to a person in the custody of the federal government. That being the case, the Extradition Act gives petitioner no "right to contest the legality of his delivery" to the State of New Jersey which could be preserved by Article IV(d) of the Interstate Agreement. Whether or not, wholly apart from the Extradition Act, a federal prisoner might have some due process right to a hearing prior to transfer to state authorities under the Interstate Agreement and, if so, the grounds upon which he might contest the transfer are questions that are not presently before me. Whatever requirements the due process clause might impose on such transfers, they were satisfied by the hearing afforded petitioner before the Regional Director of the Bureau of Prisons at which it was clearly established that the requirements of the Interstate Agreement had been satisfied, that an indictment had been returned in New Jersey and that petitioner was the individual named in the indictment. Petitioner was represented by counsel at the hearing, was confronted with and given the opportunity to cross examine the witnesses against her, and was afforded a detailed statement of the Regional Director's findings and conclusions. The due process clause surely entitled her to nothing more. Cf. Montanye v. Haymes, 427 U.S. 236, 96 S. Ct. 2543, 49 L. Ed. 2d 466 (1976); Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976); Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). *fn21"


 AND NOW, this 15th day of November, 1976, for the reasons stated in the foregoing opinion, the petition of William Louise Thomas for a writ of habeas corpus is denied.

 BY THE COURT: J. William Ditter, Jr. / J.

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