Opinion
Civil Action No: 04-1933 Section: "J" (5).
July 9, 2004
ORDER AND REASONS
On July 8, 2004, Kenneth Mitan filed a Complaint in this Court seeking a temporary restraining order to prevent his extradition from Louisiana to Michigan, and requesting his immediate release from the custody of the Sheriff of Jefferson Parish. Mitan, a resident of Michigan, claims that he was convicted of contempt of court and sentenced to serve thirty (30) days in prison. Mitan failed to appear in Michigan to serve his sentence, and a Michigan state judge issued a bench warrant for his arrest. On May 26, 2004, Petitioner was arrested in Jefferson Parish and has been incarcerated in excess of 30 days.
In this Court, Mitan argues that the laws of both Michigan and Louisiana dictate that a person held for extradition must be given credit for time served while awaiting extradition. Based on a representation by counsel for Mitan that the named defendants (the District Attorney and Sheriff of Jefferson Parish) had no interest in this matter and did not intend to oppose the TRO request, and after hearing arguments presented by Mitan's counsel, this Court granted the temporary restraining order yesterday afternoon. Shortly thereafter, Mark Fox, special counsel for Ingham County, Lansing, Michigan, and Joe Finnerty, assistant prosecutor from Ingham County, called this Court asking to be heard before Mr. Mitan is released. The Court held a telephone conference with Mr. Fox, Mr. Finnerty, and Mr. Ralph Whalen, counsel for Mitan. Thereafter, this Court amended the previously issued temporary restraining order and ordered that Mitan not be extradited or released from the custody of the Jefferson Parish Sheriff, pending further orders of this Court. The Court instructed all counsel to submit any additional information, documentation or legal arguments by fax or e-mail, not later than 12 o'clock noon today.
After receiving and considering the submissions submitted by counsel, this Court held a second telephone conference with Mr. Fox, Mr. Finnerty, and Mr. Whalen this afternoon. As verbally conveyed to counsel, the Court decided to vacate the previously issued temporary restraining order for the following reasons.
Kenneth Mitan is a fugitive from the State of Michigan, who has been convicted of criminal contempt of court, and sentenced to 30 days incarceration. The contempt conviction arises from a complicated civil lawsuit in which a judgment in excess of $300,000 was awarded against Mitan, after which Mitan apparently transferred assets in direct violation of an injunction not to do so. When Mitan failed to report as instructed to serve that contempt sentence, a bench warrant was issued by the Michigan state court judge. In addition, a bench warrant was issued because Mitan failed to appear in Court as ordered on June 10, 2003 to answer additional contempt charges. Several weeks later, Mitan was arrested as a fugitive in Chicago, Illinois, but subsequently released on bond and ordered to return to Michigan to appear in court to answer the pending charges and serve his sentence.
While not technically designated as a habeas corpus petition under 28 U.S.C. § 2254, the Complaint filed by Mitan in this case essentially asks this Court to order his release from state custody. In Michigan v. Doran, 439 U.S. 282, 289, 99 S.Ct. 530, 535 (1978), the Supreme Court held that "[o]nce the governor has granted extradition, a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive."
In the present case, it is undisputed that the governors of both states involved, Michigan and Louisiana, have signed and forwarded the necessary requisition and warrant ordering that Kenneth Mitan be extradited from Louisiana to Michigan. Furthermore, plaintiff admits that the four factors listed in Doran are not at issue. Lastly, petitioner admits that he waived his right to challenge extradition.
Although it is arguable that Mr. Mitan has served his 30 day sentence, this is an issue that the Michigan courts should decide. Accordingly,
IT IS ORDERED that the previously issued orders (Rec. Docs. 2 3) granting Plaintiff's request for a temporary restraining order, dated July 8, 2004 are hereby VACATED. IT IS FURTHER ORDERED that Plaintiff's complaint is DISMISSED WITH PREJUDICE, at Plaintiff's cost.