# Braden v. 30th Judicial Circuit Court of Kentucky/Dissent Rehnquist

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* Opinion of the Court
* Concurring Opinion Blackmun
* Dissenting Opinion Rehnquist
[p502] MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE POWELL concur, dissenting.
Today the Court overrules Ahrens v. Clark, 335 U.S. 188 (1948), which construed the legislative intent of Congress in enacting the lineal predecessor of 28 U.S.C. § 2241. Although considerations of "convenience" may support the result reached in this case, those considerations are, in this context, appropriate for Congress, not this Court, to make. Congress has not legislatively overruled Ahrens, and subsequent "developments" are simply irrelevant to the judicial task of ascertaining the legislative intent of Congress in providing, in 1867, that federal district courts may issue writs of habeas corpus "within their respective jurisdictions" for prisoners in the custody of state authorities. The Court, however, not only accomplishes a feat of judicial prestidigitation but, without discussion or analysis, explicitly extends the scope of Peyton v. Rowe, 391 U.S. 54 (1968), and implicitly rejects Ex parte Royall, 117 U.S. 241 (1886).

## I

In order to appreciate the full impact of the Court's decision, a brief reiteration of the procedural stance of the case at the time the petition for habeas corpus was filed is necessary. Petitioner is incarcerated in Alabama pursuant to a state court judgment, the validity of which petitioner does not attack. Petitioner had been indicted in Kentucky and a detainer filed by Kentucky authorities with the Alabama authorities. Kentucky had conducted no proceedings against petitioner; no judgment of conviction on the Kentucky indictment had been obtained. From Alabama, petitioner requested Kentucky authorities to ask the Alabama authorities to [p503] deliver him to Kentucky so that petitioner could be tried on the Kentucky indictment. No action was taken on this request, and the Kentucky Supreme Court refused to issue a writ of mandamus requiring Kentucky authorities to request that Alabama deliver petitioner for trial in Kentucky. Petitioner then filed the instant habeas corpus proceeding in Kentucky, contending that he was "in custody" of Kentucky authorities and that the "custody" was illegal because he had been denied his right to a speedy trial. Petitioner is not seeking to attack collaterally a state judgment of conviction in federal court. In substance, petitioner is seeking, prior to trial, to force the Commonwealth of Kentucky to litigate a question that otherwise could only be raised as an absolute defense in a state criminal proceeding against petitioner.

## II

The first inquiry is whether a state prisoner can, prior to trial, raise the claim of the denial of a right to a speedy trial by petitioning a federal court for writ of habeas corpus. The Court reasons that since Peyton v. Rowe, supra, "discarded the prematurity doctrine," ante, at 488, "petitioner is entitled to raise his speedy trial claim on federal habeas corpus."
Petitioner filed this petition alleging federal jurisdiction pursuant to 28 U.S.C. § 2241, 2254. Section 2254 pertains only to a prisoner in custody pursuant to a judgment of conviction of a state court; in the context of the attempt to assert a right to a speedy trial, there is simply no § 2254 trap to "ensnare" petitioner, such as the court below felt existed. The issue here is whether habeas corpus is warranted under § 2241 (c)(3); that section empowers district courts to issue the writ, inter alia, before a judgment is rendered in a criminal proceeding. It is in the context of an application for federal habeas [p504] corpus by a state prisoner prior to any trial in a state court that the effect of the instant decision must be analyzed.
The Court reasons that since Smith v. Hooey, 393 U.S. 374 (1969), held that a State must, consistent with the Sixth and Fourteenth Amendments, "make a diligent, good-faith effort to bring" a prisoner to trial on a state indictment even though he is incarcerated in another jurisdiction, id., at 383, and, since Peyton v. Rowe, supra, overruled "the prematurity doctrine," therefore, a prisoner can attack in a federal habeas corpus proceeding the validity of an indictment lodged against him in one State even though he is imprisoned in another. I cannot agree with this reasoning.
In Smith, this Court held that a State must make an effort to try a person even though he was incarcerated in another jurisdiction. That case did not, however, involve federal habeas corpus. It came here on certiorari after the state court had denied a petition for a writ of mandamus seeking to have the underlying indictment dismissed. The Texas Supreme Court had ruled that the state courts had no power to order the federal prisoner produced for trial on the state indictment. This Court reversed, holding that, in view of the Sixth and Fourteenth Amendment guarantees of a speedy trial, the State must, after demand therefor, attempt to obtain the prisoner from the sovereignty with custody over the prisoner.
It by no means follows, however, that a state prisoner can assert the right to a speedy trial in a federal district court. The fundamental flaw in the reasoning of the Court is the assumption that since a prisoner has some "right" under Smith v. Hooey, supra, he must have some forum in which affirmatively to assert that right, and that therefore the right may be vindicated in a federal district court under § 2241 (c)(3). Smith v. Hooey did [p505] not, however, establish that a right distinct from the right to a speedy trial existed. It merely held that a State could not totally rely on the fact that it could not order that a prisoner be brought from another jurisdiction as a justification for not attempting to try the defendant as expeditiously as possible. The right to a speedy trial is, like other constitutional rights, a defense to a criminal charge, but one which, unlike others, increases in terms of potential benefit to the accused with the passage of time. Barker v. Wingo, 407 U.S. 514 (1972). The fact that a State must make an effort to obtain a defendant from another sovereign for trial but fails, after demand, to make an effort would weigh heavily in the defendant's favor. But Smith v. Hooey does not necessarily imply that federal courts may, as the District Court did in this case, in effect, issue an injunction requiring a state court to conduct a criminal trial. If the State fails to perform its duty, Smith v. Hooey, it must face the consequences of possibly not obtaining a conviction, Barker v. Wingo. But the fact that the State has a duty by no means leads to the conclusion that the failure to perform that duty can be raised by a prospective defendant on federal habeas corpus in advance of trial. The history of federal habeas corpus and the principles of federalism strongly support the approach established by Ex parte Royall, supra, that, absent extraordinary circumstances, federal habeas corpus should not be used to adjudicate the merits of an affirmative defense to a state criminal charge prior to a judgment of conviction by a state court.
The Court's reasoning for allowing a state prisoner to resort to federal habeas corpus is that the prisoner is attacking the validity of a "future custody." The Court relies on Peyton to justify federal jurisdiction. Peyton, however, was in a significantly different procedural posture from the instant case. There, the Court held that a [p506] state prisoner could challenge the constitutional validity of a sentence which he had not yet begun to serve when he was currently incarcerated pursuant to a valid conviction and sentence, but the sentence he sought to attack was to run consecutively to the valid sentence. Even though a person may be "in custody" for purposes of §§ 2241 (c)(3), or 2254, if he has not yet begun to serve a sentence entered after a judgment of conviction, as the Court held in Peyton, it by no means follows that he is similarly "in custody" when no judgment of conviction has been entered or even any trial on the underlying charge conducted. The Court's suggestion that a person may challenge by way of federal habeas corpus any custody that might possibly be imposed at some time in the "future," which suggestion unwarrantedly assumes both that a constitutional defense will be rejected and that the jury will convict, is not supported by the language or reasoning of Peyton. Mr. Chief Justice Warren, writing for the Court in Peyton, emphasized the role of federal habeas corpus for state prisoners as "substantially a post-conviction device," 391 U.S., at 60, and "the instrument for resolving fact issues not adequately developed in the original proceedings." Id., at 63. The Court there stated that the demise of the McNally rule would allow prisoners "the opportunity to challenge defective convictions." Id., at 65.
The Court here glosses over the disparate procedural posture of this case, and merely asserts, without analyzing the historical function of federal habeas corpus for state prisoners, that the rationale of Peyton is applicable to a pretrial, preconviction situation. Citation to that decision cannot obscure the fact that the Court here makes a significant departure from previous decisions, a departure that certainly requires analysis and justification more detailed than that which the Court puts forth.
[p507] There is no doubt that a prisoner such as petitioner can assert, by appropriate motion in the courts of the State in which the indictment was handed down, that he should be brought to trial on that charge. Smith v. Hooey, supra. There is also no doubt that such a prisoner may petition a federal district court for a writ of habeas corpus prior to trial. See 28 U.S.C. § 2241 (c)(3). What the Court here disregards, however, is almost a century of decisions of this Court to the effect that federal habeas corpus for state prisoners, prior to conviction, should not be granted absent truly extraordinary circumstances.
In Ex parte Royall, supra, the petitioner was indicted in state court for selling a bond coupon without a license. Prior to trial on that indictment, he petitioned in federal court for a writ of habeas corpus, contending that the statute upon which the indictment was predicated violated the contract clause, insofar as it was applied to owners of coupons. In holding that the (then) Circuit Court had the power to issue the writ but had properly exercised its discretion not to do so, the Court wrote:
   "That discretion should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the States, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution." 117 U.S., at 251.
The judicial approach set forth in Ex parte Royall—that federal courts should not, absent extraordinary circumstances, interfere with the judicial administration and process of state courts prior to trial and conviction, even though the state prisoner claims that he is held in violation of the Constitution—has been consistently followed. Cook v. Hart, 146 U.S. 183 (1892) (custody [p508] alleged to violate Art. 4, § 2); New York v. Eno, 155 U.S. 89 (1894) (custody alleged to violate Supremacy Clause); Whitten v. Tomlinson, 160 U.S. 231 (1895) (custody alleged in violation of Constitution due to improper extradition); Drury v. Lewis, 200 U.S. 1 (1906) (custody alleged to violate Supremacy Clause). Cf. Ex parte Fonda, 117 U.S. 516 (1886); In re Duncan, 139 U.S. 449 (1891); In re Wood, 140 U.S. 278 (1891); In re Friedrich, 149 U.S. 70 (1893). The situations in which pretrial or preconviction federal interference by way of habeas corpus with state criminal processes is justified involve the lack of jurisdiction, under the Supremacy Clause, for the State to bring any criminal charges against the petitioner. Wildenhus's Case, 120 U.S. 1 (1897); In re Loney, 134 U.S. 372 (1890); In re Neagle, 135 U.S. 1 (1890).
The effect of today's ruling that federal habeas corpus prior to trial is appropriate because it will determine the validity of custody that may be imposed in actuality only sometime in the indefinite future constitutes an unjustifiable federal interference with the judicial administration of a State's criminal laws. The use of federal habeas corpus is, presumably, limited neither to the interstate detainer situation nor to the constitutional rights secured by the Sixth and Fourteenth Amendments. The same reasoning would apply to a state prisoner who alleges that "future custody" will result because the State plans to introduce at a criminal trial sometime in the future a confession allegedly obtained in violation of the Fifth and Fourteenth Amendments, or evidence obtained in violation of the Fourth and Fourteenth Amendments. I thoroughly disagree with this conversion of federal habeas corpus into a pretrial-motion forum for state prisoners.

## III

[p509] In addition to sanctioning an expansion of when a federal court may interfere with state judicial administration, the Court overrules Ahrens v. Clark, supra, and expands the parameters of which federal courts may so intervene. In Ahrens, the Court held that "the presence within the territorial jurisdiction of the District Court of the person detained is [a] prerequisite to filing a petition for writ of habeas corpus." 335 U.S., at 189. The Court construed the phrase "within their respective jurisdictions" to mean that Congress intended to limit the jurisdiction of a district court to prisoners in custody within its territorial jurisdiction. Id., at 193.
The Court here says that the "language" of Ahrens "indicates" the result reached below. The explicit holding of the Court, however, is plainly much more than an "indication."
   "Thus the view that the jurisdiction of the District Court to issue the writ in cases such as this is restricted to those petitioners who are confined or detained within the territorial jurisdiction of the court is supported by the language of the statute, by considerations of policy, and by the legislative history of the enactment. We therefore do not feel free to weigh the policy considerations which are advanced for giving district courts discretion in cases like this. If that concept is to be imported into this statute, Congress must do so." Id., at 192-193 (emphasis added; footnote omitted).
The result reached today may be desirable from the point of view of sound judicial administration, see Ahrens v. Clark, supra, at 191; Nelson v. George, 399 U.S. 224, 228 n. 5 (1970). It is the function of this Court, however, to ascertain the intent of Congress as to the meaning [p510] of "within their respective jurisdictions." Having completed that task in Ahrens, it is the function of Congress to amend the statute if this Court misinterpreted congressional intent or if subsequent developments suggest the desirability, from a policy viewpoint, of alterations in the statute. See Cleveland v. United States, 329 U.S. 14 (1946). We noted in Nelson that the resolution of any apparent dilemma "caused" by this Court's holding in Ahrens is appropriately one to be undertaken by Congress. 399 U.S., at 228 n. 5. Legislative "inaction" in amending a statute to comport with this Court's evaluation of "[s]ound judicial administration" hardly warrants the disingenuous reading of a previous decision to achieve the result that Congress, despite judicial prodding, has refused to mandate. However impatient we may be with a federal statute which sometimes may fail to provide a remedy for every situation, one would have thought it inappropriate for the Court to amend the statute by judicial action.
The Court lists several "developments" that have somehow undercut the validity, in the Court's opinion, of the statutory interpretation of the phrase "within their respective jurisdictions." As the amended § 2255 is relevant only to federal prisoners collaterally attacking a conviction, and as § 2241 (d) applies only to intrastate jurisdiction, the relevance of the amendments with respect to the jurisdictional requirement of § 2241 (c)(3) is not a little obscure. The interpretation of the phrase "within their respective jurisdictions" in Ahrens is hardly incompatible with these recent amendments of statutes dealing with situations not involving the interstate transportation of state prisoners. The further argument that Burns v. Wilson, 346 U.S. 137 (1953), "undermines" Ahrens overlooks the fact that the Court in Ahrens specifically reserved that question, 335 U.S., at 192 n. 4, the resolution of which is by no means an explicit rejection [p511] of Ahrens. Finally, the fact that this Court has expanded the notion of "custody" for habeas corpus purposes hardly supports, much less compels, the rejection of a statutory construction of an unrelated phrase.
In the final analysis, the Court apparently reasons that since Congress amended other statutory provisions dealing with habeas corpus, therefore the congressional intent with respect to the meaning of an unamended phrase must somehow have changed since the Court previously ascertained that intent. This approach to statutory construction, however, justifies with as much, if not more, force, the result reached below: Congress, aware of this Court's interpretation of the phrase in Ahrens, deliberately chose not to amend § 2241 (c)(3) when it selectively amended other statutory provisions dealing with federal habeas corpus. Indeed, the most recent indications of legislative intent support this conclusion rather than that advanced by the Court. See H.R. Rep. No. 1894, 89th Cong., 2d Sess., 1-2 (1966); S. Rep. No. 1502, 89th Cong., 2d Sess. (1966). See also n. 13, ante, at 497.
I would adhere to this Court's interpretation of the legislative intent set forth in Ahrens v. Clark, supra, and leave it to Congress, during the process of considering legislation to amend this section, to consider and to weigh the various policy factors that the Court today weighs for itself.