Carbo v. United States
Opinion of the Court
delivered the opinion of the Court.
The sole question in this case is whether the United States District Court for the Southern District of California has jurisdiction to issue a writ of habeas corpus ad prosequendum directing a New York City prison official to deliver petitioner, a prisoner of that City, to California
Petitioner, one of five defendants indicted on September 22, 1959, in the District Court for the Southern District of California on charges of extortion and conspiracy,
This is the first time this Court has undertaken a construction of the statutory authority for the issuance of writs of habeas corpus ad prosequendum since Chief Jus
Section 14 of the First Judiciary Act gave authority to
“all the . . . courts of the United States ... to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. And . . . either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment. — Provided, That writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody, under or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.” 1 Stat. 81-82 (1789).
We are indeed fortunate to have the benefit of the close scrutiny to which Chief Justice John Marshall subjected § 14 in Ex parte BoLlman, supra. Initially, the Chief Justice observed that “for the meaning of the term habeas corpus, resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by written law.” 4 Cranch, at 93-94. Mindful perhaps of his own observation the preceding year that “There is some obscurity in the act of congress,” Ex parte Burford, 3 Cranch 448, at 449, he then proceeded to analyze the meaning of the writ as described in § 14. He recognized that the term habeas
The Chief Justice, following the English practice, particularly 3 Blackstone, Commentaries *129, noted that the writ ad prosequendum was necessary to remove a prisoner in order to prosecute him in the proper jurisdiction wherein the offense was committed. In his discussion of the common usage of the various writs, he recognized in Ex parte Boilman, supra, that the Congress had without qualification authorized the customary issuance of the writ ad prosequendum by a jurisdiction not the same as that wherein the prisoner was confined.
Following the Judiciary Act of 1789, there came a series of legislative amendments dealing with habeas corpus, but, significantly, all related solely to the usages of the Great Writ.
The second section in the 1875 Revision of the laws on habeas corpus, R. S. § 752, authorizing issuance of the Great Writ by justices and judges, included the jurisdictional limitation
The third section in the revised arrangement, R. S. § 753, collected all the instances in which the Great Writ might issue on behalf of imprisoned applicants.
From this history it becomes obvious that the Congress had continual concern for the Great Writ — habeas corpus ad subjiciendum. Exclusively to it did it give attention, and only upon its issuance did it impose a limitation. The other species of the writ, including that involved here— habeas corpus ad prosequenduip — continued to derive authority for their issuance from what had been the first sentence of § 14 of the First Judiciary Act, which was not repealed until the 1875 Revision of the Statutes at Large, when it was re-enacted as two separate and distinct sections, R. S. § 716 (all-writs) and R. S. § 751 (general habeas corpus).
The Congress had obviously made an attempt to completely separate the habeas corpus provisions from those concerning other writs. However, just as in 1789 Marshall had found authority for the writ ad prosequendum in the reference to habeas corpus in the first sentence of § 14, so
Thus, the ad prosequendum writ, necessary as a tool for jurisdictional potency as well as administrative efficiency, extended to the entire country. The Great Writ, however, designed to relieve an individual from oppressive confinement, could well have been and properly was, at least as early as 1842,
This same trichotomy of sections in the revised statutes, setting out the statutory authority for habeas corpus, was continued through the 1911 revision of the Judicial Code which did not affect by repeal or significant amendment the existing law on the writs.
Since from its first usage the limiting phrase had always been a qualification of the authority of individual judges to issue the Great Writ, we see no reason to read into the new codification a change of meaning specifically disclaimed by the Revisor. It is our conclusion, therefore, that the territorial limitation refers solely to issuance of the Great Writ with which the bulk of the section is concerned.
We feel that there is no indication that there is required today a more restricted view of the writ habeas corpus ad
Moreover, this construction appears neither strained nor anomalous. Much was borrowed from our English brethren. Although our own practice has limited the jurisdiction of courts and justices to issue the Great Writ, we have never abandoned the English system as to the ad prosequendum writ. Cf. 1 Chitty’s Criminal Law 132 (1847), and 4 Bacon’s Abridgment 566 (1856) for discussion of similar process. After almost two hundred years, we cannot now say it has been abandoned by a Congress which expressly said it intended to make no substantive changes. The more strongly are we led to this construction by recognition of the continually increasing importance assigned to authorizing extraterritorial process where patently desirable. Cf. Fed. Rules Crim. Proc., 4 (c)(2) and 17 (e)(1). And it is the more so here where an accommodation is so important between the federal and state authorities. Hebert v. Louisiana,
Viewed in light of this history, petitioner’s reliance upon cases dealing solely with territorial limitations upon issuance of the Great Writ and the criminal process authorized by 28 U. S. C. § 1651(a), unrelated to habeas corpus, is misplaced. Ahrens v. Clark, 335 U. S. 188 (1948), is clearly inapposite as is also United States v. Hayman, 342 U. S. 205 (1952), in which habeas corpus was not even involved.
Even were we to have agreed with petitioner’s argument, we would nonetheless be constrained to recognize that, within the modern attitude adopted in Ex parte Endo, 323 U. S. 283 (1944), rigid formulae, even as to the issuance of the Great Writ, may be tempered by factual considerations requiring the decision that its “objective may be in no way impaired or defeated by the removal of the prisoner from the territorial jurisdiction of the District Court” after the suit is begun. At 307. Such facts are present here. Petitioner Carbo filed an appearance bond, and submitted himself to the jurisdiction of the District Court by his personal appearance and plea of not guilty upon arraignment. Permission for his return to New York before trial was granted only upon his promise to return
Affirmed.
believing that, on the peculiar facts here involved, the writ, though denominated “Habeas Corpus Ad Prosequendum,” had the effect of and properly should be regarded as a subpoena issued under Paragraph (a) and properly served under Paragraph (e)(1) of Rule 17 of Federal Rules of Criminal Procedure, concurs in the result of the Court’s opinion.
The Government has raised the question of petitioner’s standing to challenge the writ (cf. Ponzi v. Fessenden, 258 U. S. 254), which point it waived by stipulation in the Court of Appeals. In light of the circumstances under which the case reaches us we do not believe that the point is well taken.
18 U. S. C. §§ 875,1951.
The order was as follows:
“Defendant appears without counsel and requests permission to enter his plea and be permitted to return to New York and obtain counsel there and return here for trial.
“Defendant Carbo pleads not guilty ....
“Court Orders cause as to Defendant Carbo set for trial with co-defendants on March 29, 1960, 9:30 AM, and directs that Defendant Carbo be returned to New York for the purpose of obtaining counsel and be returned here in time for trial.”
28 U. S. C. § 2241 provides:
“(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. The order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had.
“(c) The writ of habeas corpus shall not extend to a prisoner unless—
“(1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or
“ (2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or
“(3) He is in custody in violation of the Constitution or laws or treaties of the United States; or
“ (4) He, being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right'... ; or
“(5) It is necessary to bring him into court to testify or for trial.”
Art. I, § 9, cl. 2.
The habeas corpus provisions of § 14 of the original Judiciary Act, 1 Stat. 81 (1789), were amended by 4 Stat. 634 (1833), 5 Stat. 539 (1842), 14 Stat. 385 (1867), R. S. §§752-753 (1875), and 43 Stat. 940 (1925).
R. S. § 716 (1875): “The Supreme Court and the circuit and district courts shall have power to issue writs of scire facias. They shall also have.power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.”
R. S. § 751 (1875): “The Supreme Court and the circuit and district courts shall have power to issue writs of habeas corpus.”
R. S. § 752 (1875): “The several justices and judges of the said courts, within their respective jurisdictions, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty.”
Actually, the 1842 extension of the Great Writ’s availability to imprisoned applicants, 5 Stat. 539, had imposed a jurisdictional limitation upon its issuance — power to grant applications by foreign citizens was given only to Justices of the Supreme Court, and to judges of the District Court in the district of confinement.
This decision, unreported, would appear consonant with a legitimate inference drawn from the jurisdictional limitation expressed in
Cong. Globe, Part 1, p. 730; Part 2, pp. 790, 899, 39th Cong., 2d Sess.
We do not decide whether the writ habeas corpus ad testificandum was intended by Congress to be subject to the 1867 jurisdictional limitation. Cf. Edgerly v. Kennelly, 215 F. 2d 420.
See note 10, supra.
36 Stat. 1167.
R. S. §§ 751-753 (1875) were at that time included as §§ 451-453 of 28 U. S. C. (1946 ed.).
See note 4, supra.
H. R. Rep. No. 2646, 79th Cong., 2d Sess., p. A169; H. R. Rep. No. 308, 80th Cong., 1st Sess., pp. A177-A178.
We are not unmindful of the terse Third Circuit dictum to the contrary in Yodock v. United States, 196 F. 2d 1018, and the divergent view of at least two District Courts. However, Phillips v. Hiatt, 83 F. Supp. 935, considered § 2241 as derived solely from R. S. § 752 (1875); and In the Matter of Karol Van Collins, 160 F. Supp. 165, relied, without distinction, upon Ahrens v. Clark, 335 U. S. 188, which dealt only with the Great Writ.
In view of the cooperation extended by the New York authorities in honoring the writ, it is unnecessary to decide what would be the effect of a similar writ absent such cooperation.
That case, as well as Price v. Johnston, 334 U. S. 266, dealt with process in the nature of habeas corpus, the authority for which was not derived from the habeas corpus statutes.
See note 19, supra.
Dissenting Opinion
dissenting.
I cannot agree with the decision of the Court. We have said that “apart from specific exceptions created by Congress the jurisdiction of the district courts is territorial,” Ahrens v. Clark, 335 U. S. 188, 190, and that as a general rule “a United States district court cannot issue process beyond the limits of the district.” Georgia v. Pennsylvania R. Co., 324 U. S. 439, 467-468. These principles were applied to writs of habeas corpus ad subjiciendum in Ahrens v. Clark, supra, where we held that the words “within their respective jurisdictions” as
We are not helped by the tortured history of § 2241 and its antecedents, since the legislative material relied on by the Court is, to say the least, ambiguous,
Although the specific question presented by this case is a matter of first impression for us, the Court concludes that, since three, and perhaps four, Circuit Courts of Appeals have upheld the issuance of extraterritorial writs ad prosequendum, its interpretation of the statute has
The court below justified the District Court’s action not upon § 2241, but rather upon the all writs statute, 28 U. S. C. § 1651. This Court refrains from relying on that section, as, indeed, it should, since the general provisions of § 1651 should not be read as expanding the jurisdictional limitations created by Congress with regard to a specific writ.
I do not say that the federal courts should not have the power to issue extraterritorial writs ad prosequendum. There are persuasive reasons for conferring such authority upon the courts, and Congress is perfectly free to do so. However, if the jurisdiction of the federal courts is to be expanded, and if the traditional territorial limitation
Finally, I must add a few words concerning the Court’s dictum that, regardless of the interpretation placed upon § 2241, the California District Court had jurisdiction to issue the writ because the petitioner had previously appeared in that court, had entered a plea of not guilty, and had been permitted to return to New York to obtain counsel on condition that he would come back to California for trial. It is said that by virtue of this appearance, the District Court had “fastened ... a leash” on the petitioner, and that this “leash” supported the issuance of the.writ ad prosequendum. However, the Court ignores the fact that petitioner’s initial appearance in California was also obtained by means of a writ of habeas
Chief Justice Taft, speaking for the Court in Ponzi v. Fessenden, 258 U. S. 254, construed § 753 of the Revised Statutes, one of the enactments relied upon by the Court, as imposing a territorial limitation upon the District Court's power to issue a writ of habeas corpus ad prosequendum. He said:
"Under statutes permitting it, he [the prisoner] might have been taken under the writ of habeas corpus to give evidence in a federal court, or to be tried there if in the same district, § 753, Rev. Stats. . . .” Id., at 261. (Emphasis added.)
The lower court’s reliance upon United States v. Hayman, 342 U. S. 205, is misplaced. There the Court upheld the issuance of an extraterritorial writ in the nature of habeas corpus, saying that the authority to issue the writ under § 1651 was necessarily inferred from the provisions of 28 U. S. C. § 2255. This case does not involve § 2255; nor does it involve any other statute which could be read as conferring extraterritorial authority upon the federal courts.
In those few instances when Congress intended to extend the territorial jurisdiction of the federal courts, it has specifically and unambiguously indicated that intent. See Rules 4 (c) (2) and 17 (e) (1), Fed. Rules Crim. Proc., which read:
“Rule 4. Warrant or Summons Upon Complaint.
“(c) Execution or Service; and Return.
“(2) Territorial Limits. The warrant may be executed or the summons may be served at any place within the jurisdiction of the United States.”
“Rule 17. Subpoena.
“(e) Place of Service.
“(1) In United States. A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within the United States.”
The Court's reliance upon Ex parte Endo, 323 U. S. 283, is misplaced, because the District Court's initial jurisdiction in that case was unquestionably proper in all respects.
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