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United States District Court, Northern District of Illinois, E.D

April 3, 1981


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


Petitioner Russell Smith ("Smith") is the subject of an extradition warrant issued by Illinois Governor James Thompson as the result of an extradition request by the State of Tennessee. Smith has petitioned for a writ of habeas corpus and respondent Richard Elrod ("Elrod"), the Cook County Sheriff, has moved to dismiss. For the reasons stated in this memorandum opinion and order, Elrod's motion to dismiss is denied and Smith's petition is granted.

Smith is accused of committing an armed robbery in Tennessee November 12, 1974. Smith filed a habeas corpus petition in the Circuit Court of Cook County alleging several defects in the extradition proceeding. That petition was denied at the trial court level and the result was affirmed on appeal 85 Ill. App.3d 1198, 46 Ill.Dec. 275, 413 N.E.2d 1388 (No. 79-1245, 1st Dist. July 25, 1980). Smith's petition for a rehearing of the Illinois Appellate Court decision was denied and a petition for leave to appeal to the Illinois Supreme Court was also denied (No. 53979).

Only one issue is raised by Smith's federal petition: Smith contends that he was not in the State of Tennessee November 12, 1974. Extradition under both the federal and Illinois statutes is appropriate only when a person is a fugitive from justice in another state. 18 U.S.C. § 3182; Ill.Rev.Stat. ch. 60, § 19. It is hornbook law that a person not in the state at the time of the alleged crime (at least as to crimes requiring physical presence) cannot be a fugitive from justice. Moncrief v. Anderson, 342 F.2d 902, 904 (D.C.Cir. 1964).

When an extradition proceeding is challenged on that ground, the government's submission of valid extradition papers constitutes a prima facie case. That shifts the burden to the petitioner to prove beyond a reasonable doubt that he was not in the state at the time of the alleged crime. United States ex rel. Grano v. Anderson, 318 F. Supp. 263 (D.Del. 1970), aff'd, 446 F.2d 272 (3d Cir. 1971). If the extradition papers state a specific date on which the crime was committed, the petitioner need prove only that he was not in the state on that specific date. Hyatt v. New York ex rel. Corkran, 188 U.S. 691, 23 S.Ct. 456, 47 L.Ed. 657 (1903).

This Court's review of the Circuit Court of Cook County proceeding reveals that the trial judge applied an incorrect legal standard. At the hearing the trial judge found that the evidence demonstrated that Smith was in the State of Illinois continuously from October 25, 1974 until well after the date of the alleged crime (see for example Tr. 19-20).*fn1 That finding should have been sufficient to grant Smith's petition for a writ of habeas corpus.

But the judge held as a matter of law that evidence showing presence in the jurisdiction where the alleged crime was committed within a reasonable proximity of the time mentioned in the extradition documents is enough to require extradition (Tr. 36). For that purpose the trial court relied mistakenly on three cases: People ex rel. Mortensen v. O'Brien, 371 Ill. 351, 20 N.E.2d 782 (1939); People ex rel. Moore v. Wirz, 349 Ill. 80, 181 N.E. 641 (1932); Strassheim v. Daily, 221 U.S. 280, 31 S.Ct. 558, 55 L.Ed. 735 (1911).

Both Illinois cases stand for a quite different proposition: If a petitioner demonstrates that he was not in the state at the time mentioned in the extradition papers, the state may then produce evidence to show that the crime was not committed on the specific date mentioned in the extradition papers. Indeed in Mortensen, 371 Ill. at 355, 20 N.E.2d 782, the Court distinguished the precise situation posed by Smith in the present action:

  While the evidence here does not show relator was in
  the demanding State on the precise date alleged, it
  tends to show the crime was committed about that time
  and that he was then in the city of Davenport. There
  is no dispute about this. Under the authorities cited
  this was sufficient for extradition. Cases holding
  that a prisoner is entitled to discharge where the
  Governor's warrant names a specific date as to the
  commission, or time of commission, of the offense,
  and on the hearing it is proved that the prisoner was
  not in the demanding State on that date, and there is
  no proof or offer of proof that the crime was in fact
  committed on some other date nor any evidence tending
  to show the prisoner was then in the demanding State,
  have no application here.

In Strassheim the petitioner had committed a culpable act that came to fruition only after he was out of the state. Under those circumstances the Supreme Court held that he was still a fugitive from justice because he was in the state at the time he committed the culpable act, 221 U.S. at 285, 31 S.Ct. at 560:

  [W]e think it plain that the criminal need not do
  within the State every act necessary to complete the
  crime. If he does there an overt act which is and is
  intended to be a material step toward accomplishing
  the crime, and then absents himself from the State
  and does the rest elsewhere, he becomes a fugitive
  from justice, when the crime is complete, if not
  before. [citing cases] For all that is necessary to
  convert a criminal under the laws of a State into a
  fugitive from justice is that he should have left the
  State after having incurred guilt there, Roberts v.
  Reilly, 116 U.S. 80 [6 S.Ct. 291, 29 L.Ed. 544], and
  his overt act  becomes retrospectively guilty when
  the contemplated  result ensues.

Thus no authority has been advanced for the proposition that a petitioner must do more than demonstrate that he was not in the jurisdiction of the alleged crime on the specific date mentioned in the extradition papers. In fact the Supreme Court has explicitly stated in Hyatt, 188 U.S. at 711-12, 23 S.Ct. at 459:

  In the case before us it is conceded that the relator
  was not in the state at the various times when it is
  alleged in the indictment that the crimes were
  committed, nor until eight days after the time when
  the last one is alleged to have been committed. That
  the prosecution on the trial of such an indictment
  need not prove with exactness the commission of the
  crime at the very time alleged in the indictment is
  immaterial. The indictments in this case named
  certain dates as the times when the crimes were
  committed, and where in a proceeding like this there
  is no proof or offer of proof to show that the crimes
  were in truth committed on some other day than those
  named in the indictments, and that the dates therein
  named were erroneously stated, it is sufficient for
  the party charged to show that he was not in the
  State at the times named in the indictments. . . .

Accordingly, had the trial judge applied the proper legal standard he should have granted the writ of habeas corpus based on his own findings of fact.

This Court's inquiry — and this opinion — would end here were it not for the opinion of the Illinois Appellate Court, which stated:

  The record shows the trial court was thoroughly
  familiar with these principles and properly applied
  them to the circumstances here. Further, as here, we
  do not believe that based on the witnesses'
  credibility it can be said that the plaintiff proved
  beyond all reasonable doubt that he was not in the
  demanding State at the time of the armed robbery.

Though the last sentence is not a model of clarity,*fn2 it appears that the Appellate Court may have undertaken its own examination of the record and concluded, unlike the trial judge, that petitioner had not proved beyond a reasonable doubt that he was not in the State of Tennessee on November 12, 1974.

Earlier this year in Sumner v. Mata, ___ U.S. ___, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), the Supreme Court examined the effect of a factual finding by a state appellate court under 28 U.S.C. § 2254(d)(8).*fn3 It held that Section 2254(d) requires deference by federal courts to factual determinations by any state court, including a state appellate court that makes factual determinations based on a review of the lower court's record. Sumner therefore makes the Appellate Court's determination that petitioner failed to meet his burden presumptively correct, to be overturned only if that "factual determination is not fairly supported by the record."

With due deference to the Illinois Appellate Court, this Court finds no basis whatever in the record of the state court hearing for finding that petitioner failed to meet his burden. Respondent presented no evidence of its own, while Smith presented four witnesses (in addition to his own testimony) that he arrived in Chicago on October 25, 1974 and did not leave during the month of November:

    1. James Smith (no relation) was a gas station
  employee during the month of November 1974. He
  testified that Russell Smith was a full time employee
  at that gas station for approximately one month
  before November 16, 1974. Moreover he presented a
  stub for a paycheck made out to Smith for work done
  during the week of November 11 to 16, 1974. Although
  the witness appears to have been mistaken in that
  Russell Smith was in Chicago for about 3 weeks
  (rather than a month) before November 16, that error
  is non-material, for both the evidence of his
  employment during November and the evidence of the
  paycheck stub were unrefuted.

    2. Louise Madison (Smith's cousin) testified that
  Smith came from Tennessee to live with her in Chicago
  just prior to Halloween in 1974.

    3. Edward Smith (Smith's brother) testified that
  during the last week of October in 1974 he took Smith
  to the bus station where he left for Chicago. He also
  testified that Smith called his household in
  Tennessee from Chicago on November 10, 1974 because
  of a birthday of a younger brother.

    4. Finally Vicky Lynn Porter (Smith's common law
  wife) testified that Smith was in Chicago during
  November of 1974.

Although none of the witnesses was able to place the precise date on which Smith arrived in Chicago, none of the witnesses was impeached in any respect as to his or her testimony that Smith was in Chicago during November of 1974.

Like the trial judge, this Court cannot overlook the testimony of four credible witnesses, one of whom was supported by documentary evidence and none of whom was impeached. There was no evidence whatever placing Smith in Tennessee on the critical date. Both the Illinois Appellate Court and this Court are called on to evaluate a paper record in light of the trial court's finding after having heard and seen the uncontroverted testimony. As mandated by Sumner v. Mata and Section 2254(d)(8), this Court has considered the record as a whole and has concluded that any factual determination by the Illinois Appellate Court is wholly unsupported — certainly "is not fairly supported" — by the record.

This Court therefore finds, as did the trial judge, that Smith has demonstrated beyond a reasonable doubt that he was not in the State of Tennessee on November 12, 1974.


This Court determines that an evidentiary hearing is not required (Rule 8(a) following 28 U.S.C. § 2254). Smith's petition for a writ of habeas corpus is granted and a writ is ordered to issue releasing Smith from custody and barring his extradition to Tennessee.

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