Roger S. Bandy, Appellant, v. United States Attorney General And/or United States Marshal for the District of North Dakota, Appellees, 408 F.2d 523 (8th Cir. 1969)

Roger S. Bandy appeals from an order of the United States District Court for the District of North Dakota dismissing his petition for a writ of habeas corpus. This chapter in the litigious career of Bandy stems from his conviction for bail jumping in violation of 18 U.S.C. § 3146 (1962 ed.), a conviction affirmed this day by this Court. Bandy v. United States, 8 Cir., 1969, 408 F.2d 518. The relevant facts surrounding the bail jumping conviction are set forth in Bandy v. United States, supra, and will not be repeated here.

We affirm the order dismissing the writ of habeas corpus.

The contentions made in this appeal to a large extent parallel those made in Bandy v. United States, supra. Bandy argues that under the teachings of Ahrens v. Clark, 335 U.S. 188, 68 S. Ct. 1443, 92 L. Ed. 1898 (1948), the United States District Court for the District of North Dakota had jurisdiction to entertain his motion since he was physically present within that Court's jurisdiction pursuant to a writ of habeas corpus ad prosequendum directed to the warden of the United States Penitentiary at Leavenworth, Kansas, but also argues conversely that the Court had no power to issue the writ of habeas corpus ad prosequendum.

Ahrens v. Clark, supra, held a federal district court is without jurisdiction to issue a writ of habeas corpus filed by a person in custody if the person detained is not within the territorial jurisdiction of the issuing court, construing then 28 U.S.C. § 452 as relating to the "territorial jurisdiction" of the District Court. This section with changes and additions is now § 2241 of 28 U.S.C., but the reference to the construed language "within their respective jurisdictions" remains unchanged. Since Carbo v. United States, 364 U.S. 611, 81 S. Ct. 338, 5 L. Ed. 2d 329 (1961) has ruled that § 2241(a) of 28 U.S.C. is not a territorial limitation on the issuance of a writ of habeas corpus ad prosequendum but only on the Great Writ (habeas corpus ad subjiciendum for inquiry into the cause of the restraint), we need not discuss Bandy's converse contention that the District Court was without authority to issue the ad prosequendum writ. That matter was also decided adversely to Bandy on his appeal of the bail jumping conviction. Bandy v. United States, supra. Accord, Terlikowski v. United States, 379 F.2d 501, 507(8 Cir. 1967).

We therefore will only consider the jurisdictional point of whether the United States District Court for the District of North Dakota had authority to issue a writ of habeas corpus ad subjiciendum and inquire into the legality of Bandy's restraint.

In United States ex rel. Quinn v. Hunter, 162 F.2d 644 (7 Cir. 1947), petitioner was brought from Leavenworth, Kansas to the Northern District of Illinois pursuant to a writ of habeas corpus ad testificandum, in order that he might testify at a hearing on his motion to correct sentence. The warden of Leavenworth appeared for the hearing as a witness and the District Court issued a writ of habeas corpus ad subjiciendum and had the warden served with the writ while in the courtroom. The Seventh Circuit held that the District Court did not have jurisdiction to hear and determine the cause of petitioner's restraint in the penitentiary at Leavenworth, Kansas, stating at 648-649 of 162 F.2d:

"The court below evidently proceeded on the theory that it had jurisdiction merely because Quinn [petitioner] and Warden Hunter were in court. We think something more is required, and that is that the unlawful restraint against which relief is sought must also exist in the territorial jurisdiction of the court."

Accord, Ginyard v. Clemmer, 123 U.S. App.D.C. 100, 357 F.2d 291, 292-293 (1966); McGann v. United States, 233 F. Supp. 419, 423 (D.C.Md.1964), aff'd 347 F.2d 986 (4 Cir. 1965), cert. denied 383 U.S. 916, 86 S. Ct. 907, 15 L. Ed. 2d 670.

Bandy was in the temporary custody of the United States Marshal in the District of North Dakota pursuant to a writ of habeas corpus ad prosequendum issued solely in order to provide Bandy, as requested by him, with a prompt trial on the bail jumping charge pending against him. Under these circumstances, the United States District Court for the District of North Dakota was without jurisdiction to entertain his application for a writ of habeas corpus ad subjiciendum. Bandy remained in the lawful custody of the warden of the United States Penitentiary at Leavenworth, Kansas, and a petition for a writ of habeas corpus ad subjiciendum would have to be directed to the warden in the proper judicial district, wherein the penitentiary is located.¹ 

We note in passing that the remaining issue urged on the Court by Bandy in this petition was decided adversely to him in his appeal from conviction on the bail jumping charge. Bandy was not entitled to a removal hearing pursuant to Rule 40, Fed. R. Crim. P., before being transferred to Leavenworth, Kansas upon his capture in New York after jumping bail, as determined in Bandy's bail jumping appeal; nor was he entitled to a removal hearing upon being transferred from Leavenworth, Kansas to the District of North Dakota pursuant to a writ of habeas corpus ad prosequendum. Bandy v. United States, supra.

Judgment affirmed.