*1 v. CARBO UNITED STATES. Argued January
No. 72.
November
1960. Decided
A.
argued
L. Wirin
B. Beirne
the cause
William
Fred Okrand.
petitioner.
them on the brief was
With
the cause for the
Rosenberg argued
Beatrice
United
her
Solicitor General
States. With
on the brief were
Attorney
Wilkey.
Rankin and Assistant
General
the Court.
opinion
delivered the
Mr.
Justice
Clark
in this case is whether
question
The sole
for the Southern District
Cali-
States District Court
has
to issue a writ
fornia
official
directing
City prison
New York
prisoner
City,
to California
petitioner,
to deliver
in the
court.1
pending
for trial on
indictment
California
*2
Appeals
the
of
have
Both
District
and the Court
Court
3The order was as follows: appears requests permission without “Defendant counsel plea permitted enter his to return to York be New and obtain here trial. counsel there and return for pleads guilty not .... “Defendant Carbo “Court cause as Defendant Carbo set for trial with co- Orders 29, 1960, AM, defendants on March 9:30 and directs that Defendant obtaining purpose Carbo be returned to New York for the of counsel here and be returned in time for trial.” In that the indictment set March 1960. order for petitioner obligation bond, meet of his as well might order, court, as that of on March 16, the latter again writ issued a of habeas City prison directing
the New York official the return for On petitioner trial on March the same served, petitioner and before it moved date could quash ground objection His sole writ. States District the Southern District Court of California had no to issue the to an officer located outside its territorial limits. The contention is language bottomed on the S. C. as codified U. 1948.4 We have concluded the issuance of *3 prosequendum the corpus writ of habeas was within by Congress of the court as authorized the in 2241.
This is the first has a con- time this Court undertaken statutory authority struction of the for issuance of the corpus of habeas Chief Jus- writs since provides: U. S. C. may by Supreme “(a) corpus granted Court, be Writs of habeas the any thereof, any judge justice the district courts and circuit within respective judge jurisdictions. The order of a circuit shall be their in of the the of the district court the district wherein entered records complained of is restraint had.
“(c) corpus prisoner The writ of habeas shall not extend to a unless— authority
“(1) custody He or of is in under color of thereof; or States for trial before some court United or is committed “ (2) custody pursuance of He is act done in an in for an or omitted process, court Congress, order, judgment Act an or decree of a of or judge States; or of the or United or
“(3) custody or He is in in of Constitution laws violation States; of the treaties United or “ foreign (4) He, being a state and domiciled therein is citizen of right'... ; custody alleged or for an done under act or omitted bring testify “(5) necessary him court or for It is to into to trial.” Bollman, Marshall, parte (1807), in Ex tice Cranch Judiciary language Act, of the First Stat. interpreted the (1789). therefore, appropriate It both seems, 81-82 necessary to first our view trace course followed to granting judicial power action issue writs congressional corpus generally. of habeas authority Act Judiciary 14 of First to gave
Section “all . ... the . . courts of the United States facias, habeas and all issue writs of scire specially provided by statute, other writs not may necessary for the exercise of their respective prin- jurisdictions, agreeable ciples usages law. And . . either of the of . justices supreme of court, as well as courts, grant district shall have writs of purpose inquiry habeas for the into the Provided, That cause of writs of commitment. — prisoners shall in no case extend to they unless or gaol, custody, are under where authority States, colour of the or are committed for trial same, before some court or are necessary brought testify.” to be into court to (1789). Stat. 81-82 are We indeed fortunate have the benefit the close *4 scrutiny subjected to Chief Justice John Marshall BoLlman, 14 in parte Ex supra. Initially, § the Chief meaning Justice observed that term “for the of the habeas be may unquestionably resort had the common law; power by but the of award the writ the courts the United States, given of must written 4 law.” Cranch, perhaps at 93-94. Mindful of his own observa year obscurity the in preceding tion that “There some act congress,” Burford, of Ex 3 Cranch parte 448, at analyze proceeded meaning he then of the writ in recognized as described 14. He the term that habeas many species “is a term” of generic including that encompassed, concluded, writ. It he to the addition (habeas corpus subjiciendum, Great Writ for an restraint) into of habeas inquiry the cause the writ prosequendum. The noted, “Great Chief Justice” that when used in the however, Constitution,5 is, say the cor singly “when used we writ of —when pus, addition, without mean that generally great we most traditionally writ” to test Ex liberty. used restraint of Bollman, parte supra, at 95.
The Chief Justice, following English practice, par- ticularly 3 Blackstone, *129, Commentaries noted that the ad prosequendum prisoner was to remove a necessary to prosecute proper jurisdiction order him in the wherein the offense committed. In of his discussion the common he usage recognized of various writs, Boilman, parte Ex supra, that the Congress had without qualification customary authorized the of issuance writ ad prosequendum by a not the same prisoner wherein the was confined. Following Judiciary Act of series there came a legislative of amendments dealing with habeas corpus, but, all significantly, solely usages related to the Simultaneously Great Writ.6 expansion Writ, Great developed there from source, the common 14§ Judiciary the first aAct, second line of statutes —the portion “All large writs” measure the first sen- tence of that process devolved section, of addition along parallel course separate but the habeas corpus provisions. Upon revision of the federal statutes in 1874, general courts to issue writs of habeas I, 9, Art. cl. 2. corpus provisions original Judiciary Act, The habeas of 14 of the (1789), 1 Stat. (1833), were amended 4 Stat. 634 Stat. (1842), 14 (1867), (1875), Stat. 385 R. S. Stat. §§752-753 (1925).
616 the first express grant a of the part which was
corpus, of the 14, disappeared language sentence of portion the first from the all writs statutes-derivative further amend which, after (1875), 716 sentence, R. S. gen 1651.7 This as 28 U. S. C. today ment, known three- in the first was, however, retained power eral dealing of the Revised Statutes reorganized sections as the and (1875),8 §S. 751 served corpus, habeas R. authority prose- for writs ad of the modern version parte in Ex Marshall had relied quendum upon which Bollman. on section in the 1875 Revision of
The second laws 752, authorizing S. of the R. issuance habeas jurisdic- by justices judges, and included Great Writ had first imposed limitation which been for the tional 385. The motive for that limita- time10 Stat. reportedly taken Chief position tion can be traced rejecting application for the Great Justice Chase ground on the that he was incarcer- prisoner Writ from taken position his circuit.11 Mindful of the ated outside Supreme (1875): “The and the and dis R. Court circuit S. § They power have to issue writs of scire facias. shall trict courts shall specifically provided for have.power to issue all writs not also necessary may respective statute, for the exercise of their agreeable usages principles jurisdictions, to the and of law.” Supreme (1875): “The and the and dis R. Court circuit S. § power corpus.” writs of courts shall have to issue trict judges (1875): justices of the said 9 R. “The several S. 752§ grant power courts, respective jurisdictions, within their shall have inquiry purpose of an into the cause writs of habeas for the liberty.” of restraint of availability to Actually, the of the Writ’s 1842 extension Great imposed jurisdictional applicants, 5 limita imprisoned Stat. had foreign grant upon applications citizens its tion issuance— given only Supreme Court, to Justices District Court in the district of confinement. legiti unreported, appear decision, would consonant with a This expressed jurisdictional from the limitation mate inference drawn *6 Justice, the Chief amended the first draft Senate expanding again usage bill once of the Great phrase Writ and inserted the their respective “within jurisdictions” upon obvious limitation the action of —an judges justices power individual in exercising their issue the Congress Great Writ. The in debates indicate it thought that was inconvenient, potentially embarrass- certainly ing, expensive and on quite the whole unneces- sary to provide every anywhere judge authority issue the Great of applicants Writ on behalf far distantly removed from the courts they whereon sat.12
The third section the revised arrangement, R. S. § collected all 753, the instances in which Great Writ might issue on behalf of imprisoned applicants. history
From this it Congress becomes obvious that the had continual concern for the Great corpus Writ —habeas subjiciendum. ad Exclusively to it it give attention, did only upon its issuance impose did it a limitation. The species other of the writ, including that involved here— corpus habeas to derive au- prosequenduip —continued thority for their from issuance what had been the first Judiciary sentence of 14 of the § First which Act, was not repealed until the 1875 Revision of at Large, the Statutes when it was re-enacted as separate two and distinct sec- tions, (all-writs) R. S. 751 (general and R. S. habeas corpus).
The Congress obviously had attempt made an to com- pletely separate corpus provisions the habeas from those concerning other writs. However, just as 1789 Marshall authority had found for the
reference habeas the first 14,§ sentence of so 1842, 10, supra, Supreme cf. note Justices Court should assigned applications limit their considerations to within from their circuits, just judges as were district limited to their district. 12Cong. 1, 730; Globe, p. 2, pp. 790, 899, Part Cong., Part 39th 2d Sess. in the lineal authority was constituted
too in its gave courts sentence, S. § of that R. derivative distinguished jurisdictional limitation, without to issue writs individual R. S. judges, Sullivan, 50 F. generally. State v. whereas Clearly, phrase generic, the use in 751 was respective “within their authority grant *7 only the meaning in was jurisdictions” specific, R. S. §752 Writ.13 Great a tool writ, necessary as
Thus,
prosequendum
the ad
as
as administrative effi-
jurisdictional
well
potency
country.
Writ,
The
entire
Great
ciency, extended
the
oppressive
designed
relieve
individual
however,
properly was, at
been and
confinement, could well have
in
district of
early
1842,14
only
least as
as
the
issuable
convenience,
This
in
with
confinement.
was
consonance
expense
inordinate
necessity and avoidance of
—considera-
light
in
of the
remarkably
when viewed
unpersuasive
tions
writ
prosequendum.
role of the
ad
statutes,
This
in
trichotomy
the revised
same
of sections
corpus,
statutory authority
the
for habeas
was
setting out
Code
through
continued
the 1911 revision of the Judicial
by repeal
significant
affect
or
amendment
did not
which
In 1925,
the writs.15
when the Judicial
existing
the
law on
again
was
43 Stat.
some attention
amended,
Code was
only
paid
assign
to habeas
but
to individual
Appeals
the same
within
judges of the Courts
had within their
circuits
District Court
their
obvious adherence to the tradition embodied
districts —an
only
in
the
R. S. 752
dealt
Great Writ
In
imposed
on its
jurisdictional
limitations
issuance.
habeas
We do not decide whether
writ
testificandum
by Congress
subject
jurisdictional
was
to be
to the 1867
intended
Kennelly,
Edgerly v.
1948, when clarification United States Code16 was thought desirable, the present took its statute form, and for the legislative history first time of the writ of habeas explicit there was made reference Although statute.17 three sections merged only were into it one, was done changes phraseology necessary “with to effect the Specifically consolidation.” intent disclaimed to change existing corpus. on law That the Revisor considered the new section to deal almost exclusively in spite with the Great Writ, its au- thorization of writs ad and ad prosequen- testificandum dum, is obvious from his own note: ‘for the “Words purpose inquiry of an into cause of restraint of . . liberty’ merely descriptive . were omitted as writ.” However, as reconstructed in au- thority courts, justices as well as of individual judges, provided was now single sentence which os- *8 tensibly imposed upon jurisdictional all the same limita- previously tion imposed only to the as Great Writ’s by issuance judges. individual
Since its first usage limiting phrase had always qualification been a of the authority individual Writ, to issue the Great we see no reason to read into the new codification a change of meaning specifically dis- claimed It is conclusion, therefore, Revisor. our solely that territorial limitation refers to issuance of Writ Great with which the bulk of the section is concerned.
We feel there is no indication required that there is today more restricted view the writ habeas corpus ad 16 (1875) R. S. 751-753 were at that time 451-453 included §§ §§ (1946 ed.). 28of U. S. C. 17 supra. See note 18 Rep. Cong., Sess., p. A169; Rep. H. R. No. 79th 2d H. R. Cong., Sess., pp. No. 80th 1st A177-A178.
620 Chief when necessary in 1807 than was
prosequendum, from at reported it. Cases considered Justice Marshall involving extrater- of Appeals, least three Circuit Courts and both before prosequendum issued ritorial writs ad States, F. 2d Taylor 238 revision, v. United 1948 after the Moses v. ex rel. A. D. United States (C. Cir.); 259 C. States, Hill Cir.); 147 A. 7th v. United (C. 232 F. 2d Kipp, cf. Cir.); perhaps four, F. A. 10th (C. 2d 669 Cir.), indicate Cox, (C. F. 2d 442 A. 8th Vanover v. interpreta- unchallenged,19 at least there accepted, as an or no statutes, geographical suffers tion of the the writ limitations its use. appears neither strained this construction
Moreover, English from our Much borrowed nor anomalous. Although has limited practice our own brethren. Writ, justices of courts and to issue the Great system as to the English abandoned the we have never writ. Chitty’s Cf. Criminal Law for dis- (1847), Abridgment (1856) Bacon’s After almost two hundred process. cussion of similar say been abandoned now it has years, we cannot to make no Congress expressly said it intended strongly are changes. substantive The more we led continually increas- recognition this construction ing importance assigned authorizing extraterritorial process patently where desirable. Cf. Fed. Rules Crim. Proc., (c)(2) And it is the more so (e)(1). important here where an is so accommodation between Louisiana, the federal and state authorities. Hebert v. *9 19 dictum to the We are not unmindful of the terse Third Circuit contrary States, 1018, v. United 196 F. 2d and the Yodock divergent However, Phillips of v. view at least two District Courts. Hiatt, solely Supp. 935, F. 2241 as from R. S. 83 considered derived Collins, Supp. F. (1875); 752 In the Karol 160 and Matter Van of 188, 165, relied, distinction, upon Clark, Ahrens without v. 335 U. S. only which dealt with the Great Writ.
621 (1926). comity necessary S. 315-316 That is U. sovereignties in the administration of criminal between full justice system given recogni- our federal-state is by affording through respect tion the use of the writ both courtesy jurisdictions.20 of respective to the laws light petitioner’s upon Viewed in of this reliance history, dealing solely upon cases with territorial limitations issu- ance of the Great criminal authorized process Writ and the by C. to habeas is 1651(a), corpus, U. S. unrelated misplaced. Clark, Ahrens v. (1948), 335 U. S. Hayman, clearly as is also v. inapposite United States U. S. 205 which habeas not even (1952), involved.21 To the extent that lower court decisions have upon a contrary relied construction of disap- we of prove their conclusions.22 agreed
Even were we to have petitioner’s argu ment, we recognize would nonetheless be constrained to that, within the modern adopted parte attitude in Ex Endo, 323 U. rigid S. as to the (1944), formulae, even Writ, may issuance of the Great tempered by be factual requiring “objective considerations the decision that its may way be in no impaired or defeated removal of prisoner jurisdiction from the territorial the District Court” after suit is begun. At 307. Such facts are present here. an appearance Petitioner Carbo bond, filed himself to the submitted District personal Court his appearance plea guilty of not upon for his arraignment. Permission New York return to granted before trial was only upon promise his to return cooperation In view of the extended New York authorities honoring writ, unnecessary it is decide what would effect cooperation. similar writ absent such case, Johnston, That as well as Price v. 334 U. S. dealt with process in the authority nature for which was not derived from the habeas statutes. 19, supra. See note *10 Implicit request his he do so. that
and the condition York was his consent to New of return order him return his custodians to imposed upon obligation of habeas The second promptly. California only involved, served only writ here ad prosequendum, he would the court that petitioner and to as assurance as the his bail. Just obligation in the of suffer default not Endo prisoner in failed removal of the subsequent mere court’s beyond the application that to render say cannot vein, similar we here, so too consider, so petitioner have fastened onto factors these jurisdic- his from the escape as to suffer unsecure leash therefore, must, tion of the California court. We event, affirm on these facts. Affirmed. believing that, on the Whittaker,
Mr. Justice peculiar though denomi- involved, writ, facts here Corpus Prosequendum,” nated Ad had the effect “Habeas regarded subpoena as a issued properly should (a) and served under Para- Paragraph properly under graph (e)(1) Rule of Federal Rules Criminal Procedure, opinion. in the concurs result Court’s
Mr. Warren, Chief Justice with whom Mr. Justice dissenting. Black joins,
I agree cannot with the decision of the Court. We “apart specific exceptions have said that created Congress of the district courts terri- Clark, torial,” 188, 190, Ahrens v. 335 U. S. and that as a general rule “a States district court cannot issue process beyond Georgia the limits of the district.” v. Co., R. Pennsylvania 324 U. S. 467-468. These principles applied were to writs subjiciendum Clark, in Ahrens v. supra, where we held respective jurisdictions” the words “within their *11 used S. C. 2241 created a territorial § U. limitation upon corpus jurisdiction the habeas federal Today courts. are Ahrens departing we principles on which rested, our decision that case for the Court holds that the restrictive 2241 is language of § inapplicable corpus to writs of habeas prosequendum. ad I can justification see no for interpretations these variant of the same language the same statute. are not helped by history
We the tortured of 2241 § and its since antecedents, legislative material relied on is, the Court to say least, ambiguous,1 and could support be used to diametrically inferences opposed to those drawn the Court. For example, the fact that the statutory first reference to the writ habeas corpus ad not appear does until the enactment of 2241 reasonably implies § prior statutory none of the history is relevant insofar as that writ is concerned, codifying unified 1948, statute in corpus Congress intended language restrictive the first paragraph of 2241 apply to to all of the writs thereafter enumerated, among subjicien- which are both the ad writ dum and the writ prosequendum.
Although specific question presented by this case is a matter of impression first us, the Court concludes that, three, since and perhaps Circuit four, Courts of Appeals upheld have the issuance of extraterritorial writs ad prosequendum, its interpretation of the statute has Taft, Chief speaking Fessenden, Justice for the Court in Ponzi v. 258 U. S. construed Statutes, 753 of the Revised one of the upon by enactments Court, imposing relied a territorial limita upon tion power District Court's to issue a of habeas prosequendum. He said: permitting it, might "Under statutes prisoner] he have been [the give taken under the writ of habeas evidence in a federal court, district, or to be tried there in the same Rev. if Id., added.) Stats. . . .” at (Emphasis time, same one. But at the “accepted”
become
in which lower
are other cases
that there
recognizes
Court
contrary construction of
upon “relied
have
courts
over
Court
cases,
these
the District
2241.” In each of
holding
speedy
for a
trial
request
ruled a defendant’s
beyond its territorial
not “run
that since its orders could
ad prose-
no
issue a writ
had
jurisdiction,” it
incar
who was
trial a defendant
quendum
bring
In the Matter
Van Col
cerated outside of its district.
Hiatt,
Me.); Phillips v.
lins,
(D.
F.
C.
Supp. 165, 167
v. Ken
Del.).
Edgerly
Cf.
(D.
F.
C.
Supp.
Yodock v.
Cir.);
I not the federal courts do prosequendum. writs ad issue extraterritorial authority conferring are reasons for such persuasive There Congress perfectly so. upon courts, and is free do if is to However, jurisdiction the federal courts be if the traditional territorial limitation expanded, and Hayman, upon States The court’s reliance v. lower 205, misplaced. upheld the of an U. There the Court issuance S. saying that the extraterritorial writ in the nature of habeas necessarily authority inferred from to issue the writ under 1651was provisions U. C. 2255. This case does not involve of 28 S. 2255; it could be read nor does involve other statute which authority conferring upon extraterritorial the federal courts. is to abandoned, then Congress specifically should so indicate.3 Congress so, But has not done and until it does, we should not tamper present statutory with the scheme, except by following the customary procedure of adopting a special rule submitting Congress it to for approval. Cf. Rules 4 (c)(2), (e)(1), Fed. Rules Crim. Proc. I
Finally, must add a few concerning words the Court’s dictum that, regardless of interpretation placed upon § 2241, the California District Court had issue the writ because the petitioner previously had appeared in that court, had plea guilty, entered a of not and had permitted been to return to New York to obtain counsel on condition that he would come back to Cali- fornia for It trial. is said that appear- virtue this ance, the District Court had “fastened on ... leash” the petitioner, and that this “leash” supported issu- prosequendum. ance of the.writ ad However, the Court ignores petitioner’s fact appearance initial California was also obtained means a writ of habeas Congress In those few instances when intended extend the jurisdiction of courts, specifically territorial it federal has unambiguously (c) (2) indicated that intent. See Rules *13 (e) (1), Proc., Fed. Rules Crim. which read: Upon Complaint.
“Rule 4. or Warrant Summons “(c) Service; or Execution and Return.
“(2) may or Territorial Limits. The warrant be executed may any place summons be served at within the United States.” Subpoena.
“Rule 17.
“(e) Place Service.
“(1) subpoena requiring In A United States. the attendance of hearing place may witness or at a trial be served at within United States.” authorities of addressed the Court to City York Prison. It ill behooves New an unauthorized writ
attempt justify issuance of jurisdiction that was by relying upon theory an writ.4 This acquired by equally unauthorized judicially engrafted bootstrap introduces unwise my opinion, In the “leash” relied exception to § reality rope no more than upon by the Court is sand. parte Endo, upon Ex is mis The Court's reliance 323 U. S. *14 jurisdiction in that case
placed, the District initial because Court's respects. unquestionably proper in all