fled. Indeed, the section regarding speedy trial had been
crossed out on the form given to the petitioner by authorities
in the asylum state. Nonetheless, the Supreme Court of
Wisconsin determined that the asylum state was precluded from
determining whether the speedy trial rule or other
constitutional rights had been violated. Rather, the court
stated that vindication of constitutional rights would be
proper only when raised in the prosecuting forum.
Similarly, in Scott v. Greco, 76 Civ. 5466, unpublished slip
op. (S.D.N.Y., June 28, 1978), the petitioner was incarcerated
in New York (asylum state) on an assault charge when a warrant
was lodged against him as a fugitive from a charge of murder in
Florida (demanding state). After an extradition order was
entered and stayed, the petitioner sought habeas corpus relief
in the United States District Court for the Southern District
of New York. He claimed, inter alia, that he was denied
effective assistance of counsel in the New York proceedings and
that delays in that state's habeas corpus proceeding violated
the due process clause and his right to a speedy trial in
Florida. The court ruled that the petitioner's complaints of
constitutional violations were not cognizable in a challenge to
extradition. The court stated that "[l]ike any constitutional
defense, this can be raised at trial in the demanding state."
Scott v. Greco, supra.
Finally, in People ex rel. Vasquez v. Pratt, 24 Ill. App.3d 927,
322 N.E.2d 74 (1975), Vasquez claimed that he had been
held in Illinois too long while awaiting requisition from the
Governor of Michigan and orders of extradition from the
Governor of Illinois and, therefore, that his right to a speedy
trial was jeopardized. Vasquez had been arrested and detained
in the Winnebago County, Illinois, jail pending the issuance of
a fugitive warrant. Three days later the Governor of Illinois
issued that warrant. The following day Vasquez appeared in
court and was ordered held for seven days pending the filing of
the requisition warrant from the Governor of Michigan. His
commitment eventually was extended another 90 days. On the 33rd
day, the request from the Governor of Michigan was filed.
Approximately one month later, the Governor of Illinois filed a
rendition warrant. Thereafter, Vasquez sought habeas corpus
relief. The Uniform Criminal Extradition Act (Ill.Rev.Stat.
1963, ch. 60, §§ 32, 33, 34) requires that a fugitive may be
committed for no longer than 30 days pending the issuance of an
extradition rendition warrant and allows for a recommitment
period not to exceed 60 days. In discussing the speedy trial
claim, the Illinois Appellate Court dismissed the appellant's
argument because, in the court's view, there is a critical
difference between the nature of a criminal proceeding and an
extradition proceeding. The court stated that evidentiary rules
and constitutional principles of due process must be rigidly
adhered to in the criminal trial since its purpose is to
determine the guilt or innocence of the accused. Extradition,
however, is a right which belongs to the demanding state. It
contemplates only a summary and ministerial proceeding, the
primary purpose of which is to return a fugitive to the
demanding state so that he can stand trial. 322 N.E.2d at 77.
Relying upon People ex rel. Gummow v. Larson, 35 Ill.2d 280,
220 N.E.2d 165 (1966), the Vasquez court found that the time
period during which the accused may be committed does not run
against the governor of the asylum state so that his failure to
issue and serve a rendition warrant within statutory periods
will prevent extradition. According to the court, "[t]his is to
be contrasted with a criminal prosecution in which the failure
to bring an accused to trial by a court having jurisdiction
within 120 days . . . forever bars the state from prosecuting
that person for the offense." 322 N.E.2d at 77. The court
stated that an action for habeas corpus relief would have been
proper prior to service of the rendition warrant, while the
appellant was held improperly. However, the court added, "once
the rendition warrant has been filed issues relating to any
delay in consummating the extradition proceedings become moot
and absent any question as to the validity of the rendition
warrant the realtor may be delivered to the demanding
A petitioner also is precluded from seeking "pre-trial"
habeas corpus relief in a federal court in the asylum state on
constitutional grounds by the doctrines of federalism and
comity. Ordinarily a federal court should abstain from granting
pre-trial habeas corpus relief, especially when such relief
would result in the "derailment of a pending state proceeding."
Braden v. 30th Judicial Circuit Court of Kentucky,
410 U.S. 484, 491, 93 S.Ct. 1123, 1127, 35 L.Ed.2d 443 (1973); United
States ex rel. Bryant v. Shapp, 423 F. Supp. 471 (D.Del. 1976).
Although the extradition proceeding is a summary and
mandatory procedure, a court in the asylum state may deny
extradition where extraordinary circumstances exist. For
example, in People ex rel. Bowman v. Woods, 46 Ill.2d 572,
264 N.E.2d 151 (1970), a case cited by both petitioner and
respondent, the Illinois Supreme Court refused to order the
extradition of a defendant to the demanding state although all
the necessary papers and procedures were in order. Nonetheless,
the Bowman court held that the demanding state had forfeited
its right to extradition by an inordinate and unexplained delay
— thirteen years — in effecting extradition of the fugitive.
During that period, the fugitive was twice arrested in the
asylum state (Illinois) pending the receipt of a warrant from
the demanding state, and twice released when those warrants
were not received. Although the Bowman court denied
extradition, a speedy trial violation was neither claimed nor
found. Subsequent to the court's decision, if Bowman happened
to stray into the demanding state, that state remained free to
bring him to trial. Of course, Bowman could have raised his
speedy trial claim in the context of a subsequent criminal
proceeding in the demanding state.
Another exception to the issuance of an order of extradition
is where the minimal procedural requirements of extradition
have not been followed. Before an individual can be
extradicted, the governor of the asylum state and its courts
must determine whether the extradition documents are in order,
whether the petitioner has been charged with a crime in the
demanding state, whether the petitioner is the person named in
the request for extradition, and whether the petitioner is a
fugitive. People v. Doran, supra. Failure to comply with these
procedural safeguards prior to extradition can be challenged in
a habeas corpus proceeding. McBride v. Soos, 594 F.2d 610 (7th
Cir. 1979); United States v. Meyering, supra; United States ex
rel. Silver v. O'Brien, 138 F.2d 217 (7th Cir. 1943), cert.
denied, 321 U.S. 766, 64 S.Ct. 522, 88 L.Ed. 1062 (1944). In
the case at bar, however, petitioner does not challenge the
procedural regularities of Illinois' extradition procedure.
Neither has he alleged any circumstances sufficiently
extraordinary to permit Illinois to deny Mississippi its right
to extradite the petitioner.
Extraordinary or special circumstances also may arise to
permit a federal court to adjudicate the merits of an
affirmative defense to a state criminal charge prior to a
judgment of conviction by a state court. Absent special
circumstances, however, federal habeas corpus upon the motion
of a state prisoner will never lie. Ex Parte Royall,
117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886). Examples of "special
circumstances" which can trigger federal habeas corpus, as
cited by Royall are where the proceeding in the state court is
void for want of jurisdiction or where bail was denied to the
petitioner although reasonable bond was appropriate. The United
Court reaffirmed this proposition, in dicta, in Braden v. 30th
Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct.
1123, 35 L.Ed.2d 443 (1973).*fn11 The record in the instant
cause does not reveal any extraordinary circumstances that
would permit us to consider the merits of a constitutional
challenge to trial in Mississippi.
For the reasons set forth above, respondent's motion for
summary judgment is granted, and petitioner's motion for
summary judgment is denied.*fn12 It is so ordered.