(1972). Petitioner claims in his petition that the Supreme
Court of Illinois denied him the right to appeal. On May 8,
1973 petitioner filed for relief under the Illinois Post
Conviction Act. That relief was denied by the sentencing court
in Lake County.
This petition arises from the original Lake County
indictment. The petitioner claims that the federal government
was in error when they released him to state custody so that
he could be tried under the Lake County grand jury indictment.
However, this argument has no substance because petitioner had
been indicted by a Lake County grand jury and was subsequently
released on bond. The federal government merely returned
petitioner to the Lake County authorities from whence he came.
Since petitioner is currently incarcerated in Kansas, this
Court, technically speaking, has no jurisdiction with which to
entertain this petition for habeas corpus because the
petitioner was not within the jurisdiction of this Court when
the petition was filed.
Section 2241(a) of 28 U.S.C. giving District Courts power
to grant writs of habeas corpus "within their respective
jurisdictions" has been interpreted by the Supreme Court as
requiring the conclusion that a Federal District Court has no
jurisdiction to issue the writ if the person detained is not
within the territorial jurisdiction of the Court when the
petition is filed. Ahrens v. Clark, 335 U.S. 188, 68 S.Ct.
1443, 92 L.Ed. 1898 (1948). See also Whiting v. Chew,
273 F.2d 885 (4th Cir. 1960), cert. denied, 362 U.S. 956, 80 S.Ct. 872,
4 L.Ed.2d 873.
The petitioner is apparently arguing that the Lake County
Circuit Court had no jurisdiction over him and his conviction
in the state court was thus invalid. Since the petitioner is
attacking a sentence imposed by the State of Illinois the
petition is apparently presented pursuant to 28 U.S.C. § 2254.
Before a petition for habeas corpus will be entertained by this
Court, the petitioner must allege errors which reach
constitutional dimensions. Giamo v. Purdy, 346 F. Supp. 1
(S.D.Fla. 1972). Petitioner has alleged no constitutional
errors. He does not claim that his trial was unfair or that he
did not receive a fair hearing on his mental competency.
Petitioner merely contends that his return to Lake County court
was a denial of equal protection of the laws. Throughout his
petition, petitioner fails to mention the fact that while he
was being tried in federal court, and while he was being held
in a federal mental institution, he was at the same time out on
bail from the Lake County Circuit Court.
The return of the petitioner to the Lake County Circuit
Court through a writ of habeas corpus ad prosequendum was
perfectly proper. A writ of habeas corpus ad prosequendum is
the correct way to bring a prisoner under incarceration by
state or federal courts to trial for alleged violations of
laws. Morgan v. United States, 380 F.2d 686 (9th Cir. 1967),
cert. denied, 390 U.S. 962, 88 S.Ct. 1064, 19 L.Ed.2d 1160; In
re Van Collins, 160 F. Supp. 165 (D.C. Maine 1958).
A defendant who is charged with a criminal offense in the
federal court and is at large on bail pending the
determination of his case, if arrested and held in custody by
the state authorities to answer a state indictment, outside
the jurisdiction of the federal courts in which his case is
pending, is not held in violation of his constitutional
rights. Thus, he is not entitled to a discharge by a federal
court on a writ of habeas corpus. Ex parte Marrin, 164 F. 631
(2nd Cir. 1908). The reverse is the case at bar. Here, the
defendant was out on bail for a state charge and was taken
into custody by the federal authorities and then returned to
the state for trial on state charges.
A writ of habeas corpus ad prosequendum is a necessary tool
for jurisdictional potency. Lawrence v. Willingham,
373 F.2d 731 (10th Cir. 1967).
A prisoner has no standing to contest his removal from one
state to be arraigned in another if that is provided for in a
writ of habeas corpus ad prosequendum. Derengowski v. United
States Marshal, Minneapolis Office, Minnesota Division,
377 F.2d 223 (8th Cir. 1967), cert. denied, 389 U.S. 884, 88 S.Ct.
144, 19 L.Ed.2d 180. It is the very function of a writ of
habeas corpus ad prosequendum to remove a prisoner to the
proper jurisdiction for prosecution. Gilmore v. United States,
129 F.2d 199 (10th Cir. 1942), cert. denied, 317 U.S. 631, 63
S.Ct. 55, 87 L.Ed 509. Thus, the removal of the petitioner
from a federal institution to the state court via a writ of
habeas corpus ad prosequendum is not a violation of the
petitioner's constitutional right.
The petitioner also contends that the State of Illinois
erred when they tried him "well knowing that he was mentally
ill". The petitioner states in his petition that on or about
August 1, 1970 he was found mentally incompetent by a district
court in the Northern District of California. He was returned
to Lake County for trial on February 22, 1971.
It was on petitioner's own motion that a competency hearing
was held in Lake County on March 3, 1971. Petitioner, again,
alleges no constitutional deprivation in his argument. He does
not contend that he was deprived of a full and fair hearing on
his claim of mental incompetency. He was adequately
represented by counsel at that hearing and the hearing was
held before a jury. The petitioner makes no allegations of
insufficient representation by his counsel. The state court of
Illinois decided defendant's competency to stand trial under
the laws of the State of Illinois (Illinois Revised Statutes,
Ch. 38, § 104-1 et seq.). The hearing held to determine
petitioner's competency fully resolved any question of
petitioner's mental competency to stand trial. Habeas corpus is
not a substitute for appeal. Judd v. Craven, 331 F. Supp. 391
(9th Cir. 1971). Federal habeas corpus is not intended to make
federal courts an appellate court for reviewing a state
criminal procedure. Wilson v. Rowe, 454 F.2d 585 (7th Cir.
1971), cert. denied, 406 U.S. 909, 92 S.Ct. 1618, 31 L.Ed.2d
820. The petitioner has failed to state any violation of his
constitutional rights which is necessary for a writ of habeas
corpus to be issued.
Accordingly, it is hereby ordered that the petitioner's writ
of habeas corpus is denied.