Opinion
No. 72-1153. Summary Calendar.
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409.
August 10, 1972.
Jon S. Rosenberg, Orlando, Fla., for petitioner-appellant.
Robert L. Shevin, Atty. Gen. of Fla., Raymond L. Marky, Asst. Atty. Gen., Tallahassee, Fla., for respondent-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before THORNBERRY, COLEMAN and INGRAHAM, Circuit Judges.
The narrow legal issue on this appeal from the denial on jurisdictional grounds of the writ of habeas corpus is whether a parolee, whose parole is supervised by a receiving state, as the term is defined by the Uniform Act for Out-of-state Parolee Supervision, is "in custody" in the receiving state for the purposes of the jurisdictional grant of 28 U.S.C. § 2241.
949.07 Compacts with other states
949.07
". . . (c) The writ of habeas corpus shall not extend to a prisoner unless —
(1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or
(2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or
(3) He is in custody in violation of the Constitution or laws or treaties of the United States."
Appellant Dilworth was convicted in South Dakota of embezzlement. On direct appeal the Supreme Court of South Dakota affirmed. State v. Dilworth, 83 S.D. 363, 159 N.W.2d 795 (1967). The parole authority of the State of South Dakota granted Dilworth parole after service of a portion of his sentence. By virtue of the interstate compact between South Dakota and Florida, appellant was permitted to return to Florida. A petition for the writ of habeas corpus was filed with the United States District Court for the Middle District of Florida. The district court, relying on Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) and Rodgers v. State of Louisiana, 418 F.2d 237 (5th Cir., 1969), denied the petition, stating:
"There is doubt that a state prisoner who has been placed on parole is in 'custody' as that word is used in Title 28, U.S.C. § 2241, et seq. Jones v. Cunningham, 371 U.S. 236 [ 83 S.Ct. 373, 9 L.Ed.2d 285] (1963). Because petitioner is subject to having his parole revoked by either the parole authorities of South Dakota or Florida, F.S. 942. 6F, it could be argued that both this Court and the appropriate South Dakota Federal District Court would be a proper court to consider the petition and have concurrent jurisdiction to hear this matter. However, this Court has jurisdiction over only the Florida Parole and Probation Commission, which if called before this Court to show cause why petitioner is in custody, could not be expected to argue as to the merits of petitioner's allegations. Inasmuch as the proper party who is capable of responding to the allegations is the South Dakota Parole Commission, a party not subject to this Court's jurisdiction, this cause should be dismissed, to be raised before the appropriate District Court in South Dakota. Rodgers v. State of Louisiana, 418 F.2d 237 (5th Cir. 1969)."
We agree with the district court's unstated conclusion that jurisdiction under 28 U.S.C. § 2241 attaches by virtue of custody imposed on Dillworth within the district by the Florida Parole and Probation Committee. Jones v. Cunningham, supra; Ex parte Endo, 323 U.S. 283, 65 S.Ct. 208, 89 L.Ed. 243 (1944); Reed v. Henderson, 463 F.2d 485 (5th Cir., 1972) [Rehearing Denied July 25, 1972]. Cf. Strait v. Laird, 406 U.S. 341, 92 S.Ct. 1693, 32 L.Ed.2d 141 (1972); Schlanger v. Seamans, 401 U.S. 487, 91 S.Ct. 995, 28 L.Ed.2d 251 (1971). We also agree that the exercise of this jurisdiction may be withheld in these circumstances for reasons of forum non conveniens. Reed v. Henderson, supra. Where the receiving state does no more than enforce a sending state's parole, it makes little sense to burden the district court for that district, or the attorney general of the receiving state with the defense of a collateral constitutional challenge to the sending state's conviction. Differing considerations immediately arise, however, in circumstances where a receiving state makes extrinsic use of the prior conviction; e. g., for enhancement of its own sentence. Cf. Craig v. Beto, 458 F.2d 1131 (5th Cir., 1972). A direct corollary of this holding is, however, that should appellant return to the district court after an unsuccessful attempt to invoke the jurisdiction of the United States District Court for the sending jurisdiction, dismissal on forum non conveniens grounds would be manifestly inappropriate. Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); Walker v. Wainwright, 390 U.S. 335, 88 S.Ct. 962, 19 L.Ed.2d 1215 (1968).
The order of the district court is affirmed.