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April 30, 1976


The opinion of the court was delivered by: KEADY

 This is a habeas corpus proceeding brought pursuant to 28 USC § 2241 et seq., by Dr. Norman A. Garrison, Jr., petitioner, a resident of Corinth, Mississippi, in which he seeks release from custody of the Sheriff of Marshall County, Mississippi, based upon a warrant of extradition rendered December 4, 1974, by the Governor of the State of Mississippi. If executed, the warrant would return Garrison to the State of Missouri, whose governor has requested his extradition as the accused on a charge of first degree murder of Garrison's former wife, Lee Ann Garrison, at Kennett, Dunklin County, Missouri.

 This case had its genesis on September 8, 1974, when the body of Lee Ann Garrison was discovered in her Kennett, Missouri, home about 11:20 a.m. In addition to having sustained a brutal beating, the victim had been fatally shot in the head with a small caliber pistol. Local law enforcement officials arrived on the scene soon after discovery of the body and began their investigation. Later that afternoon or evening Charles H. Baker, prosecuting attorney of Dunklin County, filed an affidavit before Leon McAnally, judge of the Magistrate Court of Dunklin County, charging Garrison with the murder. Judge McAnally forthwith issued a warrant for petitioner's arrest.

 When Garrison could not be found in Missouri, and his presence in Mississippi became known, Christopher S. Bond, Governor of Missouri, on September 18 upon the petition of the Dunklin County prosecuting attorney requested Garrison's extradition from William L. Waller, Governor of Mississippi. Extradition proceedings were commenced, and on October 10 a hearing was held before Governor Waller's extradition officer to determine whether Garrison should be returned to Missouri. On December 4, Governor Waller signed the warrant of rendition, and petitioner immediately surrendered to the Marshall County sheriff. On the same day, Garrison's attorneys petitioned the Circuit Court of Marshall County for a writ of habeas corpus; the writ was promptly issued, made returnable December 18, and bail set at $25,000.

 At the request of the Attorney General of Mississippi, who undertook representation of both the respondent sheriff and the interests of the State of Missouri, the state court habeas corpus hearing was continued until January 6, 1975. After an exhaustive three-day evidentiary hearing in state court, the trial judge suppressed the warrant of extradition, sustained the petition for habeas corpus and discharged Garrison from custody.

 Respondent appealed to the Supreme Court of Mississippi, which on March 23, 1976, reversed the judgment of the trial court, quashed the writ of habeas corpus and ordered that Garrison be remanded to the sheriff of Marshall County for return to Missouri. Garrison's petition for rehearing in the state supreme court was denied on April 20 and, eschewing appeal or petition for certiorari to the Supreme Court of the United States, petitioner that same day entered this federal district court seeking habeas relief for alleged violations of his federal rights.

 Since the mandate of the state supreme court had already issued, we immediately ordered the issuance of a writ of habeas corpus to preserve the status quo and afford Garrison the opportunity to present his claims to this court. Our writ, issued on April 20, was made returnable April 26, and $100,000 bail was set and at once posted by petitioner.

 On April 26, at our hearing, the parties agreed that a full and fair evidentiary hearing had been conducted by the state courts. No contention was made that either 28 USC § 2254(d) or Townsend v. Sain, 372 U.S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963), mandated an evidentiary hearing in this court. The entire state court record, together with briefs and other legal memoranda submitted to the state supreme court, was received into evidence. The parties stipulated that the state record was full and complete, requiring no additional proof save in one particular. Petitioner offered the official documents received by the Mississippi Governor in support of the Missouri extradition request. This exhibit was received over respondent's objections. *fn1"

 We have now given full consideration to the state court proceedings, the briefs of counsel and the oral arguments made to this court, and can proceed to a ruling on Garrison's petition for a writ of habeas corpus.

 Our jurisdiction here is properly laid under 28 USC § 2241, and Garrison has by resort to the Circuit Court of Marshall County and the Supreme Court of Mississippi sufficiently exhausted his state court remedies, thus meeting the requirements of 28 USC § 2254. See Sweeney v. Woodall, 344 U.S. 86, 97 L. Ed. 114, 73 S. Ct. 139 (1953); Lizana v. Alabama, 394 F.2d 512 (5 Cir. 1968); Walden v. Mosley, 312 F. Supp. 855 (N.D. Miss. 1970). Likewise, though presently released on bond, petitioner is "in custody" within the meaning of § 2254, and therefore not ineligible for habeas corpus relief. See Hensley v. Municipal Court, 411 U.S. 345, 36 L. Ed. 2d 294, 93 S. Ct. 1571 (1973); Marden v. Purdy, 409 F.2d 784 (5 Cir. 1969).

 Petitioner's arguments before this court are substantially identical to those presented at every level of the state court proceedings and constitute a two-pronged attack upon the validity of his extradition. It is first contended that extradition is improper in the absence of probable cause to support the issuance of the original arrest warrant and extradition request by the State of Missouri. Petitioner further argues that he was demonstrably not within the demanding state at the time of the commission of the alleged crime, and is thus incapable of being a fugitive within the meaning of applicable constitutional and statutory provisions.

 Respondent's position is that an inquiry into the probable cause upon which the Missouri accusatory affidavit, arrest warrant and extradition request were based is not for this court to undertake, since petitioner's constitutional claims are appropriately to be raised in the demanding state, and if necessary in the federal courts of Missouri, not in the state or federal courts of Mississippi, the state of his asylum. The respondent also argues that petitioner has failed to carry his burden of establishing conclusively his absence from the State of Missouri at the time of the commission of the alleged crime, and therefore must be considered a fugitive from Missouri justice.


 Interstate extradition of fugitives is a matter of federal law, originating in article IV, section 2 of the United States Constitution:

"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 Crime."

 Effectuation of this constitutional mandate has been at all times assured by federal extradition statutes which date to 1793. See Act of Feb. 12, 1793, 1 Stat. 302; Ex parte Kentucky v. Dennison, 65 U.S. (24 How.) 66, 16 L. Ed. 717 (1861). The current congressional implementing statute is 18 USC § 3182. *fn2"

"The provision of the Federal Constitution quoted . . . was not used to express the law of extradition as usually prevailing among independent nations, but to provide a summary executive proceeding by the use of which the closely associated states of the Union could promptly aid one another in bringing to trial persons accused of crime by preventing their finding in one state an asylum against the processes of justice of another. . . . Such a provision was necessary to prevent the very general requirement of the state constitutions that persons accused of crime shall be tried in the county or district in which the crime shall have been committed from becoming a shield for the guilty rather than the defense for the innocent, which it was intended to be. Its design was and is, in effect, to eliminate, for this purpose, the boundaries of states, so that each may reach out and bring to speedy trial offenders against its laws from any part of the land.
"Such being the origin and purpose of these provisions of the Constitution and statutes, they have not been construed narrowly and technically by the courts as if they were penal laws, but liberally, to effect their important purpose, with the result that one who leaves the demanding state before prosecution is anticipated or begun, or without knowledge on his part that he has violated any law, or who, having committed a crime in one state, returns to his home in another, is nevertheless decided to be a fugitive from justice within their meaning. . . .
"Courts have been free to give this meaning to the Constitution and statutes because, in delivering up an accused person to the authorities of a sister state, they are not sending him for trial to an alien jurisdiction, with laws which our standards might condemn, but are simply returning him to be tried, still under the protection of the Federal Constitution, but in the manner provided by the state against the laws of which it is charged that he has offended." (Citations of authority omitted).

 Thus, extradition is intended not as a preliminary inquiry into the merits of a criminal prosecution, but merely as a summary executive proceeding by which a criminal accused can be brought before the appropriate tribunal for adjudication. Our role in this case is therefore exceedingly narrow, and it is well settled in this and other circuits that as a federal district court sitting in the asylum state, our duty is confined to three rigidly defined points of inquiry:

(1) whether a crime has been "charged" in the demanding state;
(2) whether the individual in custody is the person so charged; and
(3) whether the individual in custody was in the demanding state when the alleged crime was committed.

 Hyatt v. People of State of New York ex rel. Corkran, 188 U.S. 691, 709, 47 L. Ed. 657, 23 S. Ct. 456 (1903); U.S. v. Henderson, 453 F.2d 790 (5 Cir. 1971); Watson v. Montgomery, 431 F.2d 1083 (5 Cir. 1970); Woods v. Cronvich, 396 F.2d 142 (5 Cir. 1968); U.S. v. Flood, 374 F.2d 554 (2 Cir. 1967); Smith v. State of Idaho, 373 F.2d 149 (9 Cir. 1967); Walden v. Mosley, 312 F. Supp. 855 (N.D. Miss. 1970).

 Implicit in this notion of limited inquiry by asylum state courts in extradition proceedings is the now axiomatic rule that state and federal courts and executive officers in the asylum state are not otherwise to concern themselves with the legality of the criminal prosecution pending against the fugitive in the demanding state. Sweeney v. Woodall, 344 U.S. 86, 97 L. Ed. 114, 73 S. Ct. 139 (1952); see Watson v. Montgomery, supra; Woods v. Cronvick, supra; U.S. v. Flood, supra; Davis v. Behagen, 321 F. Supp. 1216 (S.D.N.Y. 1970). Against this general background we measure petitioner's precise contentions.


 Since Garrison raises no issue that he is not the person sought by Missouri authorities, we may begin by determining whether petitioner has been charged with crime in Missouri within the meaning of § 3182 and the Extradition Clause of the Constitution. As to the form of the request for extradition, the rendition warrant and supporting documents, there is no dispute. All have been properly executed by authorized officials of both states. The complaint or accusatory affidavit charging petitioner with crime was executed in accordance with Missouri law, *fn3" and the subsequent arrest warrant for the crime of first degree murder issued by Judge McAnally likewise is in proper form. See V.A.M.S. § 544.020 (1969); Missouri Supreme Court Criminal Rule 21.08; State v. Eaton, 504 SW 2d 12 (Mo. 1973). There can be no question that petitioner has been charged with commission of a felony by the State of Missouri; this appears conclusively as a matter of law on the face of the pertinent documents. Pierce v. Creecy, 210 U.S. 387, 52 L. Ed. 1113, 28 S. Ct. 714 (1907); Appleyard v. Massachusetts, 203 U.S. 222, 51 L. Ed. 161, 27 S. Ct. 122 (1906); Munsey v. Clough, 196 U.S. 364, 49 L. Ed. 515, 25 S. Ct. 282 (1905); Hyatt v. New York, 188 U.S. 691, 23 S. Ct. 456, 47 L. Ed. 657 (1902).

 Petitioner's chief attack on the sufficiency of the criminal charge against him is directed not at the technical form of the charge but at the evidentiary facts on which the charge was made. Garrison's contention is that courts in the asylum state must initially determine whether the demanding state's charge of crime and request for extradition have been supported by probable cause for petitioner's arrest. Petitioner views the Fourth Amendment to require probable cause for arrest in extradition proceedings no less than in ...

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