Unpublished Disposition, 902 F.2d 38 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 902 F.2d 38 (9th Cir. 1990)

Douglas Wayne BROWN, Petitioner-Appellant,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.

No. 89-70074.

United States Court of Appeals, Ninth Circuit.

Submitted March 5, 1990.* Decided May 9, 1990.

Before KOELSCH, ALARCON and RYMER, Circuit Judges.

MEMORANDUM** 

The Tax Court peremptorily rejected petitioner Brown's motions for writs of habeas corpus ad testificandum. By them Brown sought the presence of incarcerated persons to bear testimony on his objections to the assessment of income tax deficiencies against him.1 

This ruling was error; it necessitates the vacation of the Tax Court's ensuing judgment against Brown and further proceedings.2 

Jerry v. Francisco, 632 F.2d 252 (3rd Cir. 1980) is instructive. There one Bernard C. Jerry had commenced a section 1983 suit for damages and other relief against the warden and three guards of the prison where he had been incarcerated.

Noting Jerry's abortive attempts to secure the lower court's order directing the warden to produce the inmates as witnesses, and outlining generally the considerations upon the grant or denial of the writ, the Third Circuit concluded that where "the magistrate and by adoption, the district court did not even exercise its discretion, even though the plaintiff, Jerry, had made two prior motions that witnesses be subpoenaed ... [i]t was clearly (reversible) error to fail to act on the motion and exercise the discretion." Id. at 256.3 

So here, the decision of the Tax Court must be vacated and the matter remanded for further proceedings.4 

So ordered.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

 1

The Commissioner makes an argument that Brown was dilatory in seeking his witnesses. We must disagree. The record shows that habeas motions were submitted at least thirty days prior to the date of trial

 2

Such writ was, of course, available. It is interesting to note that the Tax Court in Roman V, Inc., petitioner v. CIR, 52 T.C.M. (CCH) 1278 (1978), chided both the Commissioner and the taxpayer for not securing by this writ, the testimony of one Gill who might have thrown considerable light upon a material issue. Noting that Gill was in custody, the Tax Court oberved " [i]t is therefore reasonable to suppose that Gill was readily available pursuant to a motion for a writ of habeas corpus ad testificandum (see Rule 21(b) (3)), had either party seen fit to call her."

 3

Brown, in addition to his petition for writ of habeas corpus, moved the Tax Court to issue and cause to be served subpoenas for his desired witnesses. His request was refused on the ground that in civil cases the attendant expense of service, fees, etc., rested upon him not the court. This ruling was correct. Tedder v. Odd, 890 F. 2 210 (9th Cir. 1989)

However, a subpoena would have been useless. Here, as noted earlier, most if not all the potential witnesses Brown sought were in penal custody serving sentences.

 4

We, of course, intimate no opinion as to the validity of the courts ultimate ruling upon Brown's motions and the matter of what proceedings must then be had

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