Bert Strand, Sheriff of San Diego County, State of California v. William Schmittroth

CHAMBERS, Circuit Judge

(dissenting).

I cannot accept the conclusion that the United States District Court for the Southern District of California was correct in ordering the California state sheriff of San Diego County to release the prisoner because he was “insulated” with an impenetrable coat of immunity: federal probation.

When federal courts grant habeas corpus petitions for state prisoners after conviction in a state court (I mean: due process habeas corpus), the federal courts are exercising what our Supreme Court holds is a paramount right and duty of the judicial system of the sovereignty of the United States itself. Much different is the variety of habeas corpus we have here. If the federal court in San Diego can say to the state sheriff of San Diego County, “Don’t touch our probationers without our consent”, then an inescapable corollary is that a state prisoner, arrested by federal agents and indicted by a federal grand jury, can rush into his state court, sue out a writ of habeas corpus and get a state order to the United States marshal of the Southern District of California commanding the release of the state probationer.

And in this competitive field of judicial intermeddling I am sure that the states will come off best. I believe it can be proved (I have no statistics, but it is my observation) that the percentage of first offenders before the bar of justice runs higher in the state courts than in the federal courts. Consequently, the occasion for state interference will be higher percentage-wise. And it distresses me to think of all the state probationers that are here and now removed from prosecution in the federal courts except by the grace of the state courts.

Suppose a state probationer violates the federal kidnapping statute. The Federal Bureau of Investigation finds the kidnapper. Can its officers arrest the culprit? Must they get the permission of a state judge to arrest him? If they can arrest him but must get permission to prosecute, how long can they hold the kidnapper while they wait for permission ? If the judge who hears the habeas corpus decides that the other jurisdiction (by grace of his discretion) should prosecute, then may the prisoner appeal, claiming an abuse of discretion?

I think of the huge number of juveniles throughout the country who are “probationers" of state juvenile courts. Can a juvenile state probationer go out, rob a national bank, get caught by the Federal Bureau of Investigation and then taunt his arrestor with, “You can’t arrest me. You can’t prosecute me. My juvenile judge said you couldn’t touch me.”

It is not inconceivable that certain people may accept the invitation we issue here, go out, shop for a friendly state court, commit some minor offense, get themselves on probation, and then venture forth to violate federal statutes with their state cloaks of immunity wrapped about them.

Apparently, part of the court’s opinion is grounded on the fact that the state offense here was committed before the federal offense was committed. Also, the ■decision seems to be bottomed in part on the circumstance that San Diego County, the state jurisdiction, is wholly within the United States District of Southern California. The questions which will follow are not here for determination, but surely we must stop and think the matter through. Will we deny the great writ to one who commits the state offense after he goes on federal probation but grant it if his state offense precedes his federal offense in point of time? How can a logical distinction in the foregoing instances be made in terms of a court’s inherent power to proceed?

Suppose the federal probation is at San Diego and the subsequent state offense and arrest are in Alameda County, California, in the Northern District of California. The application for habeas corpus must be made in the United States District Court for the Northern District. How will that work? Will a judge of the federal court in the Northern District exercise the Southern District’s (the court which put the prisoner on probation) discretion as to whether state prosecution should go ahead?

At our request, the United States was invited to appear herein and state its views. As a consequence, the United States attorney for the Southern District appears and files as a friend of the court a brief upholding the prisoner’s (Schmittroth’s) position. It will be interesting to read his brief when the Superior Court of San Diego, California, grants an order on habeas corpus releasing from the custody of the United States marshal of the Southern District of California a prisoner awaiting trial for some serious federal crime. Where will the district attorney stand then? In this two-way street, how can he assert the right of the federal government to meddle and deny the right to the state.^*

The only authority squarely in point is the two-to-one Tenth Circuit case of Grant v. Guernsey, 63 F.2d 163. There the majority’s reason does not appeal to me and there is nothing yet that compels this court to follow it, if reason be absent from it. I would disregard it.

In the field in which we are working, we have the matter of adjusting and accommodating a dual system of courts sitting side by side in a field. Most of our rules on “who gets the prisoner” have been worked out on a basis of comity. I do not regard the rule that the governmental jurisdictional entity which first arrests a prisoner (that is, of course, one not on probation), who is wanted by two jurisdictions, may proceed to vindicate its authority first as a rule based on concepts of fundamental power. I think the rules are based on comity, that is, upon considerations of what is orderly, what will cause the least friction. I do not think such a rule is one of “jurisdiction” in the fulsome sense of power. True, as rules are expressed over and over again, it is easy to attach the word “jurisdiction.” Similarly, a prisoner of one governmental unit serving penal time is left alone by another governmental unit wanting him, unless the custodian consents to prosecution elsewhere. I think that is a rule of comity, more than one of absolute power.

I recognize, if the federal district judge when he undertook to put Schmittroth on probation considered the offense committed in San Diego County against the State of California in decreeing probation, some harshness and unfairness may arise by a state prosecution for an offense considered by the federal judge in fixing the probation. But surely a decision to grant habeas corpus cannot rest on whether the judge granting probation took into consideration possible pending offenses in another separate and distinct jurisdiction. That would be a bucket of eels.

The best solution in this field of accommodation is to require the jurisdiction not holding the prisoner in confinement or not proceeding to prosecute to recede in its grasp for power. Leave the matter to the good sense prevailing usually in the co-ordinate jurisdiction. To do otherwise is to set up judicial strife and conflict with the consequential resultant contempt for the law.

When one court starts “enjoining” or “prohibiting” another court or releasing another’s prisoners, it is always unpretty. When it is done, the call and duty ought to be clear and distinct. I do not find that call to duty here. I think it is interposition.

To hold that the federal district court was right requires us to embrace a fiction that one who is on probation is in the “custody of the law.” When that fiction produces unseemly judicial conflict, as this does, the fiction ought to give way. One can be subject to a court’s orders without being in the full “custody of the law,” without having a protective casing of immunity.

* While much is said in the within opinion to the effect that the federal courts cannot claim a right to interfere with prosecution by states of federal probationers, without at the same time granting a similar right to states when the sit-nation is reversed, this opinion is not based on such a narrow ground. Because if it is good for federal courts to stop state prosecutions, it is good for states to stop federal prosecutions.