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October 6, 1981


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


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 corpus proceeding.

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 ...

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