Prince v. State

CATES, Presiding Judge

(concurring specially).

I concur only because I believe that Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (No. 71-6516, 1973) (holding that the warden of the detaining prison is the agent of the demanding state) is apparently not retrospective. To me the necessary corollary of Braden is that a demanding state must, on request for a speedy trial, call on its new found agent for the body of the prisoner so that he may be prosecuted (i. e., habeas corpus ad prosequendum) presumably in a court of the state where the prisoner is detained.

In this case Alabama merely wrote letters to California. After Braden this is no longer enough.

Some pertinent excerpts from Braden read :

“Read literally, the language of § 2241(a) [28 USC] requires nothing more than that the court issuing the writ have jurisdiction over the custodian. So long as the custodian can be reached by service of process, the court can issue a writ ‘within its jurisdiction’ requiring that the prisoner be brought before the court for a hearing on his claim, or requiring that he be released outright from custody, even if the prisoner himself is confined outside the court’s territorial jurisdiction.”

[Bracketed matter added.]

* * * * * *

“ * * * The overruling of McNally v. Hill, [293 U.S. 131, 55 S.Ct. 24, 79 L. Ed. 238] supra, made it possible for prisoners in custody under one sentence to attack a sentence which they had not yet begun to serve. And it also enabled a petitioner held in one State to attack a detainer lodged against him by another State. In such a case, the State holding the prisoner in immediate confinement acts as agent for the demanding State, and the custodian State is presumably indifferent to the resolution of the prisoner’s attack on the detainer. Here, for example, the petitioner is confined in Alabama, but his dispute is with the Commonwealth of Kentucky, not the State of Alabama. * * * ”

“Mr. Justice Blackmun.

* * * The present case is but one more step, with the Alabama warden now made the agent of the Commonwealth of Kentucky

(Italics added.)