There can be no doubt that the writ may be issued by federal courts to release a prisoner who has been convicted in violation of his right to a speedy trial, even though the delay resulted from his detention in another state. Pitts v. North Carolina, 395 F.2d 182 (4th Cir. 1968); Luckman v. Burke, 299 F. Supp. 488, 493 (E.D.Wis. 1969). And in May v. Georgia, 409 F.2d 203 (5th Cir. 1969), the Fifth Circuit significantly extended the use of the writ by applying Smith's principles to a prisoner who had not yet been tried. There a Florida prisoner complained that despite his demands, Georgia had not brought him to trial upon an indictment on which a detainer had been filed.
This is a possibility because the rule in the Fifth Circuit, where [Braden] is incarcerated, appears to be that a district court in the state that has filed the detainer is the proper forum in which to file the petition. See May v. Georgia, 409 F.2d 203 (5th Cir. 1969). See also Rodgers v. Louisiana, 418 F.2d 237 (5th Cir. 1969).
Prior to a state's adoption of the Detainers Act it usually did not surrender the prisoner to the other state until the termination of his incarceration in the holding state, since that state was not obligated, except to the extent that it expressly elected to do so by extradition statute or as a matter of comity, to produce a prisoner who was the subject of a detainer or writ of habeas corpus lodged with it by another state. See, e. g., May v. Georgia, 409 F.2d 203, 204 (5th Cir. 1969); Schindler, Interjurisdictional Conflict and the Right to a Speedy Trial, 35 U.Cin.L.Rev. 179, 185 (1966). Similarly the federal government was not under any such obligation, see Ableman v. Booth, 62 U.S. (21 How.) 506, 16 L.Ed. 169 (1858); Tarble's Case, 80 U.S. (13 Wall.) 397, 20 L.Ed. 597 (1872); Warren, Federal and State Court Interference, 43 Harv.L.Rev. 345, 353-59 (1930), except to the extent that Congress authorized a prisoner to be transferred to the requesting state, see, e. g., Title 8 U.S.C. § 4085.
Klopfer v. North Carolina, 1967, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1. The protections afforded by the right are, moreover, not diminished because a criminal defendant may be incarcerated under a lawfully imposed sentence outside the jurisdiction seeking to prosecute him. Smith v. Hooey, 1969, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607; May v. Georgia, 5 Cir. 1969, 409 F.2d 203. The Supreme Court has held that a State is required, through the use of writs of extradition, writs of habeas corpus ad prosequendum, or whatever other means may be available, to make a "diligent, good-faith effort" to secure a convict incarcerated out of state for a prompt trial on pending charges.
Moye v. Clerk, DeKalb County Superior Court, 474 F.2d 1275 (5th Cir. 1973); Anderson v. Beto, 469 F.2d 1076 (5th Cir. 1972); Lamar v. 118th Judicial District Court, 440 F.2d 383 (5th Cir. 1971).Cf., e. g., Wooley v. Consolidated City of Jacksonville, 433 F.2d 980 (5th Cir. 1970), cert. denied, 407 U.S. 924, 92 S.Ct. 2451, 32 L.Ed.2d 811 (1972); May v. Georgia, 409 F.2d 203 (5th Cir. 1969).See Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963); Douglas v. Green, 363 U.S. 192, 80 S.Ct. 1048, 4 L.Ed. 2d 1142 (1960); Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215 (1951).
We rejected Florida's non-retroactivity argument in Hoskins v. Wainwright, 5 Cir., 1971, 440 F.2d 69, 71-72, and we reject it again now. See also May v. Georgia, 5 Cir., 1969, 409 F.2d 203. It is the law of the case and the law of the land. And there it ends.
This is a possibility because the rule in the Fifth Circuit, where appellee is incarcerated, appears to be that a district court in the state that has filed the detainer is the proper forum in which to file the petition. See May v. Georgia, 409 F.2d 203 (5th Cir. 1969). See also Rodgers v. Louisiana, 418 F.2d 237 (5th Cir. 1969).
This question has been answered in the affirmative by controlling authority and we so hold. Schlanger v. Seamans, 401 U.S. 487, 490 nn. 3 4, 91 S.Ct. 995, 28 L.Ed.2d 251; United States v. Hayman, 342 U.S. 205, 220, 72 S.Ct. 263, 96 L.Ed. 232; Ahrens v. Clark, 335 U.S. 188, 190, 68 S.Ct. 1443, 92 L.Ed. 1898; Dixon v. Tennessee, 404 F.2d 27, 28 n. 1 (6th Cir.); Hibdon v. Warden, 245 F.2d 816 (6th Cir.). Accord, Duncan v. Maine, 295 F.2d 528, 530 (1st Cir.), cert. denied, 368 U.S. 998, 82 S.Ct. 624, 7 L.Ed.2d 536; U.S. ex rel. Van Scoten v. Pennsylvania, 404 F.2d 767, 771 (3rd Cir.); George v. Nelson, 410 F.2d 1179, 1181 n. 5 (9th Cir.), aff'd sub nom. Nelson v. George, 399 U.S. 224, 90 S.Ct. 1963, 26 L.Ed.2d 578. Contra, U.S. ex rel. Meadows v. N.Y., 426 F.2d 1176, 1179-1183 (2d Cir.); Word v. North Carolina, 406 F.2d 352, 360-361 (4th Cir.); May v. Georgia, 409 F.2d 203 (5th Cir.). See generally Lewis v. New Mexico, 423 F.2d 1048 (10th Cir.). Compare Booker v. Arkansas, 380 F.2d 240, 243 (8th Cir.), with Brown v. Arkansas, 426 F.2d 677, 678 (8th Cir.), cert. denied, 400 U.S. 966, 91 S.Ct. 377, 27 L. Ed.2d 386.
We affirm. This case is ripe for dismissal. If the plaintiff's characterization of this matter as an injunction against Louisiana officials is accepted, then the appellant's failure to file a brief warrants dismissal under Local Rule 9(b). If the matter is treated as a petition for writ of habeas corpus, May v. Georgia, 409 F.2d 203 (5th Cir. 1969), then the lack of a certificate of probable cause requires dismissal. McFrederick v. Florida, 261 F.2d 52 (5th Cir. 1958).
The district court denied relief on grounds that the appellant failed to exhaust all of his state remedies. Cf. May v. State of Georgia, 5th Cir. 1969, 409 F.2d 203. After this Court had granted a certificate of probable cause and leave to appeal in forma pauperis, counsel for the appellee advised that the appellant has been granted parole on his federal sentence, and is free on bail pending grand jury action on the larceny charge.