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November 2, 1973


The opinion of the court was delivered by: Bauer, District Judge.


This cause comes on James Lowell Rose's petition for habeas corpus.

Petitioner is currently confined in federal prison at Leavenworth, Kansas. He has filed his petition for habeas corpus seeking to have his state conviction set aside and to be granted a new trial from the State of Illinois. The petitioner argues that it was error for the federal government to have released him to the custody of the State of Illinois to be tried on state charges of forgery and theft. Further, petitioner maintains that the State of Illinois knew he was mentally ill but tried him for those crimes.

In September, 1968, petitioner was indicted by a Lake County, Illinois grand jury for the crimes of forgery and theft under Illinois law. Following his indictment, he was found incompetent to stand trial in a hearing which took place in the Circuit Court of Lake County. Petitioner was then committed to the Illinois Department of Public Health.

In August, 1969, petitioner was released from the Department of Public Health and was returned to Lake County. He was released on bond to the federal marshal in Chicago and was arraigned on a federal warrant from Nevada and released on a $5,000 surety bond.

On September 1, 1969, petitioner was arrested in Chicago for deceptive practices. Again he was released on bond. Four days later he was arrested in St. Louis, Missouri for committing the federal crime of armed robbery of a postal employee. Following a trial in the United States District Court for the Eastern District of Missouri, petitioner was found guilty and sentenced to one to ten years imprisonment.

On December 21, 1969, he was received in the federal criminal institution at Lompoc, California pursuant to the Missouri District Court sentence.

While awaiting trial in the federal court in California, petitioner filed a motion in the Lake County Circuit Court alleging that he had been denied a speedy trial in Lake County and that his case should be dismissed. On January 11, 1971, petitioner's motion was denied and the State of Illinois was ordered to secure the petitioner's presence by a writ returnable on March 2, 1971. Meanwhile, on August 20, 1970, petitioner had been transferred to the federal medical at Springfield, Missouri. Since the petitioner's motion for dismissal of the Lake County charges had been denied, on February 22, 1971 he was returned to Lake County for trial.

The petitioner moved for pre-trial sanity hearing on March 3, 1971 in relation to the Lake County trial proceedings. The jury was impanelled and the petitioner was found competent to stand trial. On March 29, 1971 petitioner was tried by a jury which found him guilty of the crimes charged in the indictment: forgery and theft in Lake County. Petitioner was represented by counsel in the Lake County proceedings.

Thus, petitioner had been incarcerated almost continually in federal institutions in Missouri, Nevada, Kansas and California from the time he was released on bond in 1969 from Lake County. At the time he filed his petition to dismiss his case in Lake County, because he had failed to appear in court, his bond had been forfeited and a capias issued for his arrest. He was finally returned to Lake County on February 22, 1971 pursuant to a writ of habeas corpus ad prosequendum.*fn*

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). ...

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