The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
Petitioner Patrick Mclnery ("petitioner") filed this
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a).
Petitioner currently is in the custody of John
Shelley, Sheriff of Will County, Illinois ("respondent"),
pending execution of an order of extradition to Mississippi.
Petitioner alleges that his sixth and fourteenth amendment
rights to due process and speedy trial were violated by the
three-year delay between the issuance of an extradition warrant
by the Governor of Illinois and the initiation of extradition
proceedings against him. This matter is presently before the
Court on the parties' cross-motions for summary judgment
pursuant to Rule
56(b) of the Federal Rules of Civil Procedure.
The standard to be used in deciding a motion for summary
judgment is that the party moving for summary judgment has the
burden of clearly establishing the nonexistence of any genuine
issue of fact that is material to a judgment in his favor."
Cedillo v. International Association of Bridge & Structural
Iron Workers, Local Union No. 1, 603 F.2d 7, 10 (7th Cir.
1979). All pleadings and supporting papers must be viewed in
the light most favorable to the party opposing the motion.
United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct.
993, 8 L.Ed.2d 176 (1962); Stringer v. Rowe, 616 F.2d 993, 999
(7th Cir. 1980). The Court finds, for reasons set out below,
that the petition for a writ of habeas corpus must be denied
since petitioner does not challenge his extradition per se and
he cannot raise the alleged violation of his right to a speedy
trial before this Court at this time.
The facts of this case are not disputed. On May 21, 1976,
petitioner was indicted in Lee County, Mississippi, for the
offense of aggravated assault, burglary, and attempted rape.
On September 9, 1976, petitioner escaped from the Lee County
Jail, where he was apparently awaiting trial, and fled to
Illinois. As of December 23, 1976, the Lee County District
Attorney had been informed that petitioner was incarcerated in
Cook County, Illinois, pending transfer to the Stateville
Penitentiary subsequent to an Illinois conviction.*fn1 On
January 7, 1977, the Governor of Mississippi formally
requested that the Governor of Illinois order petitioner's
extradition to Mississippi. The Governor of Illinois complied
with this request,*fn2 and on January 26, 1977, issued an
extradition warrant authorizing petitioner's arrest in
Illinois. The warrant commanded the arresting officer to
secure petitioner pending a hearing before the circuit court
of the county in which he is apprehended.
On November 14, 1979, petitioner was charged by information
in the Circuit Court of Will County, Illinois, as a "fugitive
from justice" pursuant to Illinois Revised Statute 1977,
chapter 60, section 30.*fn3 On November 19, 1979, he was
brought from the Stateville Penitentiary to appear before the
Circuit Court of Will County, where he was served with a copy
of the fugitive information. On January 25, 1980, petitioner
filed a petition in Illinois state court for writ of habeas
corpus, challenging the legality of his detention pursuant to
the fugitive information. At that time, he was incarcerated in
the Will County Jail pending disposition of the information,
having been released on parole from Stateville on January 21,
1980. The petition alleged, inter alia, that the petitioner's
right to due process of law had been violated by the failure of
Illinois authorities to initiate extradition proceedings until
November 14, 1979, almost three years after the Governor of
Illinois had issued the warrant for the petitioner's arrest on
January 26, 1977. The State responded that the rendition
warrant was not stale since petitioner had been incarcerated
since its issuance pursuant to an Illinois conviction. The
State further asserted that the constitutional claims raised by
the petitioner were beyond the limited scope of the habeas
The matter proceeded to hearing in the Circuit Court of Will
County on February 7, 1980. On March 4, 1980, the court denied
the habeas corpus petition and ordered that
petitioner be surrendered to the Mississippi authorities.
Petitioner appealed to the Appellate Court of Illinois, Third
Judicial District, and on April 10, 1980, the Appellate Court
granted his motion to stay extradition pending the appeal. On
appeal, petitioner claimed that his rights to due process and
speedy trial were violated by the unexplained delay between
issuance of the extradition rendition warrant and initiation
of the extradition proceedings against him. On December 16,
1980, the Appellate Court, affirming the denial of habeas
relief, decided that petitioner's right to a speedy trial in
Mississippi had not been violated by any actions of Illinois
officials. People v. McInery, 91 Ill.App.3d 68, 46 Ill.Dec.
122, 413 N.E.2d 876 (3d Dist. 1980). Petitioner sought leave to
appeal to the Illinois Supreme Court, which was denied. Having
exhausted his state remedies, petitioner now seeks habeas
corpus relief in this Court.
Petitioner's action to prevent his extradition to
Mississippi is predicated upon an alleged violation of his
constitutional right to a speedy trial by the inaction of
officials of Illinois. Simply put, petitioner requests us to
punish Mississippi for the alleged transgressions of Illinois
authorities perpetrated after petitionerned Mississippi to
avoid prosecution.*fn4 Thus, assuming arguendo that
petitioner's speedy trial allegation has merit, through an
unlawful act of self-help, i. e., escape from the Lee County
Jail, he will have placed himself beyond the reach of the
Mississippi judicial system. As discussed below, however,
regardless of the merit of petitioner's speedy trial claim,
extradition proceedings are not subject to judicial review in
the asylum state upon constitutional grounds that are generally
appropriate only when raised as a defense to the criminal
prosecution in the demanding state.*fn5
Article Four of the United States Constitution provides that
A Person charged in any State with Treason,
Felony, or other Crime, who shall flee from
Justice, and be found in another State, shall on
Demand of the executive Authority of the State
from which he fled, be delivered up, to be
removed to the State having Jurisdiction of the
Art. IV, § 2, ch. 2.*fn6 Kentucky v. Dennison, 65 U.S. (24
How) 66, 109, 16 L.Ed. 717, 729 (1860), the Supreme Court
described a state's duty to extradite fugitives as stemming
from a "compact entered into with the other states when it
adopted the Constitution of the United States." Subsequent
decisions have made it clear that as the purpose of the
Extradition Clause is to facilitate the speedy trial of
offenders in the jurisdiction in which the alleged offense was
committed, so that a state is precluded from offering a safe
haven to fugitives from justice of another state upon proper
demand for their return. Biddinger v. Commissioner of Police,
245 U.S. 128, 38 S.Ct. 41, 62 L.Ed. 193 (1917); U.S. ex rel.
Jackson v. Meyering, 54 F.2d 621 (7th Cir.), cert. denied,
286 U.S. 542, 52 S.Ct. 498, 76 L.Ed. 1280 (1932).
The right of extradition has long been recognized as
belonging to the demanding state and not to the fugitive.*fn7
Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421
(1886); Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96
L.Ed. 541 (1952), rehearing denied, 343 U.S. 937, 72 S.Ct. 768,
96 L.Ed. 1344; U.S. ex rel. Fort v. Meiszner, 319 F. Supp. 693
(N.D.Ill. 1970). In fact, the Supreme Court has held that there
is no violation of a criminal defendant's constitutional rights
when a prosecuting state bypasses the asylum state's
extradition procedure by "kidnapping" the defendant from the
asylum state. Ker v. Illinois, supra, Frisbie v. Collins,
supra. Thus, in order to effectuate the purpose of the
Extradition Clause — the expeditious trial of offenders — and
to protect the constitutional rights of a demanding state,
extradition is a summary and mandatory executive proceeding.
Biddinger v. Commissioner of Police, supra; U.S. ex rel.
Jackson v. Meyering, supra.
The precise scope of the extradition proceeding recently was
restated by the United States Supreme Court in Michigan v.
Doran, 439 U.S. 282, 99 S.Ct. 530, 58 L.Ed.2d 521 (1978).*fn8
In Doran, a fugitive from Arizona who had fled to Michigan
challenged the validity of a Michigan order extraditing him to
Arizona. Seeking habeas corpus relief, the petitioner claimed
that Arizona had failed to show a factual basis for its finding
of probable cause to support its charge of theft and,
therefore, that extradition was invalid. The Michigan Court of
Appeals twice denied the petitioner a writ of habeas corpus.
People v. Doran, Nos. 28507 (May 4, 1976) and 30516 (November
22, 1976). The Michigan Supreme Court reversed, however,
holding that because extradition results in a significant
impairment of liberty, such impairment is justified only upon a
proper showing that there is probable cause to believe that the
fugitive had committed
the crime charged. In re Doran, 401 Mich. 235, 258 N.W.2d 406
(1977). In effect, the Michigan Supreme Court concluded that a
court in an asylum state could review the action of its
governor in issuing an extradition warrant and, in the process,
inquire into the factual basis for the finding of probable
cause which accompanies the request from the demanding state.
401 Mich. at 240-42, 250 N.W.2d at 408-09.
The United States Supreme Court, however, did not agree. The
Court reaffirmed that the nature of the extradition proceeding
is exclusively summary and mandatory:
While courts will always endeavor to see that no
such attempted wrong [persons falsifying
information to prosecutors or prosecutors acting
wantonly or ignorantly] is successful, on the
other hand, care must be taken that the process
of extradition be not so burdened as to make it
practically valueless. It is but one step in
securing the presence of the defendant ...