The opinion of the court was delivered by: Bauer, District Judge.
MEMORANDUM OPINION AND ORDER
This cause comes on James Lowell Rose's petition for habeas
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). ...