United States District Court, Northern District of Illinois, E.D
April 3, 1981
PEOPLE OF THE STATE OF ILLINOIS, EX REL. RUSSELL SMITH, RELATOR,
RICHARD ELROD, RESPONDENT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
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.
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
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
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
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
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
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