Opinion
No. 69-245
Decided July 30, 1969.
Habeas corpus — Petitioner inmate of foreign penal institution — Detainer against petitioner based on warrant for arrest charging crime — Right to speedy trial — Article VI, U.S. Constitution.
IN HABEAS CORPUS.
Petitioner, an inmate of a California state penal institution, instituted in this court an action in habeas corpus ad prosequendam. Respondent Prosecuting Attorney of Montgomery County, Ohio, demurred to the petition.
Petitioner alleges that on September 15, 1968 the police department of the city of Dayton, Ohio, issued a detainer against him based on a warrant for his arrest which charged him with the felony of forgery. Petitioner alleges further than on January 20, 1969 he filed a demand for a "quick and speedy trial" with the Dayton Municipal Court. There is no allegation that an indictment has been returned on the charges upon which the warrant is based.
The only grounds offered by respondents in support of their demurrer are that petitioner is presently incarcerated in a foreign jurisdiction, and that "the respondents lack the power and authority to carry out a decision to secure the petitioner's temporary release for trial."
Mr. Lee C. Falke, prosecuting attorney, and Mr. John E. Breidenbach, for respondents.
Mr. Kenneth Ashmore, in propria persona.
The petition filed herein, and the response thereto, indicate a failure of the state "to make a diligent, good-faith effort" to bring the petitioner before the Dayton Municipal Court for proceedings related to the detainer issued against him. A reasonable effort by the state to secure his presence is required by the decisions of the Supreme Court of the United States in Klopfer v. North Carolina (1967), 386 U.S. 213, ___ 18 L.Ed.2d ___, 87 S. Ct. 988, and Smith v. Hooey (1969), ___ U.S. ___, 21 L. Ed. 2d 607. We are of the opinion that the reasons supporting those decisions, where a petitioner is currently under indictment by a jurisdiction other than the one in which he is incarcerated, apply with equal force to a petitioner against whom a detainer has been issued based upon a warrant for his arrest.
Writ allowed.
TAFT, C.J., O'NEILL, SCHNEIDER, HERBERT and DUNCAN, JJ., concur.
This decision was made after the death of JUSTICE ZIMMERMAN and before the appointment of a successor.
MATTHIAS, J., dissents.