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THOMAS v. LEVI

November 15, 1976

WILLIAM LOUISE THOMAS, 6955 Wister Street, Philadelphia, Pa.
v.
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.

 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 ...


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