No. 84-545 

IN THE SUPREME COURT OF TIE STATE OF MONTANA 

1985 

IN THE MATTER OF THE PETITION OF 

DONALD A. BLACKBURN a/k/a DONALD 

BLACKBURN. 

ORIGINAL PROCEEDING: 

COUNSEL OF RECORD: 

For Petitioner: 

Stephens Law Firm, Billings, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Harold F. Hanser, County Attorney, Billings, Montana 

Michael G. Alterowitz, County Attorney, Red Lodge, 

Montana 

Submitted: January 24, 1985 

Decided: April 15, 1985 

Filed: -',; I.r ) 

2 r: 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Petitioner, Donald A. Blackburn, a/k/a Donald 

Blackburn, requested an order staying judgment and 

continuation of bond and applied for a writ of habeas corpus 

from this Court on December 12, 1984. He alleged that 

procedural errors had occurred, that the charge by the State 

of Colorado was improper and that the documents accompanying 

the demand for extradition were insufficient. This Court 

issued an order staying judgment and granting a continuation 

of bond on December 14, 1984. We now deny petitioner's 

request to issue a writ of habeas corpus, and dismiss his 

petition. 

Petitioner was charged on November 4, 1983, by felony 

complaint/information, filed in the State of Colorado, with 

the crimes of theft, a felony (section 18-4-401, C.R.S. 1973, 

as amended), and issuance of bad check, a misdemeanor, 

(section 18-5-512, C.R.S. 1973, as amended). A warrant was 

issued for his arrest.. About December 15, 1983, the 

Sheriff's Office in Carbon County, Montana received several 

documents, including a copy of the arrest warra.nt, from the 

authoritites in Colorado. Petitioner had advised the sheriff 

that he would surrender himself and appear when the warrant 

was received. Petitioner did so on December 16, 1983. That 

same day, he was arrested an6 appeared in justice court in 

Carbon County to answer the Colorado arrest warrant and was 

later released on his own recognizance. 

On April 2, 1984, the Governor of the State of 

Colorado, requested the Governor of the State of Montana have 

the petitioner arrested and returned to Colorado to stand 

trial. An application for requisition, the 
information/complaint, the arrest warrant and a supporting 

affidavit on probable cause accompanied the request for 

extradition. The Governor of the State of Montana issued an 

arrest warrant for petitioner in response to this request on 

April 13, 1984. Petitioner was arrested in Yellowstone 

County on April 23, 1984, pursuant to the Governor's warrant, 

and again released on his own recognizance pending his filing 

of a petition for writ of habeas corpus to resist 

extradition. The matter was heard in the District Court of 

the Thirteenth Judicial District of the State of Montana, in 

and for the County of Yellowstone on July 30, 1984. That 

court, on December 3, 1984, dismissed the petition for writ 

of habeas corpus and ordered petitioner to surrender himself 

to Colorado authorities within ten days. 

On this, his second petition for writ of habeas corpus, 

filed December 14, 1984, petitioner raises the following 

contentions: 

(1) The controversy forming the basis for Colorado's 

request for extradition is a matter for civil litigation; 

(2) the charging documents sent by the State of 

Colorado do not conform to the requirements of section 

46-30-211(2), MCA, in that there was no copy of any 

authenticated information, and that the information, warrant 

and supporting affidavit accompanying the request for 

extradition contain conclusory allegations; 

(3) sections 46-30-302, -303 and -304, MCA require that 

a governor's warrant be issued within certain time limits and 

the State of Montana did not adhere to these limits; and 

(4) the petitioner was deprived of an opportunity to 

have an investigation by the governor's office pursuant to 

section 46-30-212, MCA. 
The scope of inquiry by a court in an extradition 

proceeding is limited to: 

"(a) whether the extradition documents on 

their face are in order; 

" (b) whether the petitioner ha.s 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 

fugi.tive." Michigan v. Doran (1978), 439 

U.S. 282, 289, 99 S.Ct. 530, 535, 58 

L.Ed.2d 521, 527; cited in Crabtree v. 

State (1980), 186 Mont. 340, 343, 607 

P.2d 566, 567. 

In Crabtree, the petitioner ha.d been charged with several 

criminal non-support offenses, was facing extradition, and 

sought relief by means of habeas corpus. He argued that 

because the charges were based on failure to comply with a 

child support order, the matter was civil, not criminal. 

This Court found no merit in that argument and reversed the 

lower court's decision to grant release of petitioner. We 

agreed with the appellant State's argument that section 

46-30-225, MCA and the Supreme Court's holding in Duran did 

not permit inquiry into the underlying charges. Petitioner's 

claim that the transaction at issue in Colorado constitutes a 

civil matter goes to the underlying charges. We therefore 

hold that this claim is beyond. the scope of a habeas corpus 

proceeding in Montana, the asylum state, but note that 

petitioner may pursue this claim in Colorado, the demanding 

state. See e.g. Jacobsen v. State (Idaho 1978), 577 P.2d 24. 

On the remaining issues, petitioner must support his 

allegations beyond a reasonable doubt to overturn the 

Governor's warrant. The Governor's warrant is prima facie 

evidence of all the information recited in it including 
identity, fugivity, and that the petitioner is properly 

charged with a crime. In re the Matter of Hart (1978), 178 

Mont. 225, 583 P.2d 411. This Court recognized this general 

rule with respect to whether the accused was a fugitive in 

State ex rel. Hart v. District Court (1971), 157 Mont. 287, 

293, 485 P.2d 698, 702, stating: 

"'The issuance of a warrant of rendition 

by the Governor of the asylum state 

raises a presumption that the accused is 

the fugitive wanted. and it is sufficient 

to justify his arrest, detention and 

delivery to the demanding state. * * * 

In order to rebut the presumption the 

accused must prove beyond a reasonable 

doubt either that he was not present in 

the demanding state at the time of the 

alleged offense or that he was not the 

person named in the warrant . . . 1 I1 

(Citations omitted. ) 

Petitioner's second claim concerns the form of the 

demand made by the State of Colorado. Section 46-30-211 (1) , 

PICA sets forth the requirements for the documents at issue as 

follows: 

1 No demand for the extradition of a 

person charged with crime in another 

state shall be recognized by the governor 

unless in writing alleging that the 

accused was present in the demanding 

state at the time of the commission of 

the alleged crime and that thereafter he 

fled from the state, except in cases 

arising under 46-30-204, and accompanied 

by : 

" (a) a copy of an indictment found or 

information supported by affidavit in the 

state having jurisdiction of the crime; 

" (b) a copy of an affidavit made before a 

magistrate there, together with a copy of 

any warrant which was issued thereon; or 

" (c) a copy of a judgment of conviction 

or of a sentence imposed in execution 

thereof, together with a statement by the 

executive authority of the demanding 

state that the person claimed has escaped 

from confinement or has broken the terms 

of his bail, probation, or parole." 
The Colorado Governor's demand was in writing. It 

alleged that petitioner "is now to be found" in Montana, that 

he was present in Colorado at the time of the alleged crimes 

and that he fled to Montana. The demand was accompanied by 

the compaint/information, the warrant and an affidavit made 

before a magistrate. The demand clearly satisfies the 

requirements of section 46-30-211(1), MCA. 

Subsection (2) adds additional requirements. The 

information or affidavit made before a magistrate must 

substantially charge a crime under the laws of the demanding 

state and the information or affidavit must be authenticated 

by the governor of the demanding state. Petitioner claims 

that the information and accompanying affidavit contain only 

conclusory allegations and thus are insufficient. 

"'The only safe rule is to abandon 

entirely the standard to which the 

indictment must conform, judged as a 

criminal pleading, and consider only 

whether it shows satisfactorily that the 

fugitive has been in fact, however 

[inartfully] charged with crime in the 

state from which he has fled. ' Pierce v. 

Creecy, 210 U.S. 387, 402, 28 S.Ct. 714, 

718, 52 L.Ed. 1113 (1908). See also 

Hogan v. OINeill, 255 U.S. 52, 55, 41 

S.Ct. 222, 65 L.Ed. 497 (1921); Brown v. 

Fitzgerald, 39 F.2d 870, 872 (9th Cir. 

1930); United States ex rel. Jackson v. 

Meyering, 54 F.2d 621, 622 (7th Cir. 

1-931), cert. denied, 286 U.S. 542, 52 

S.Ct. 498, 76 L.Ed. 1280 (1932); Person 

v. Morrow, 108 F.2d 838, 840 (10th Cir. 

1940)." Smith v. State of Idaho (1967) , 373 F.2d 149, 158, cert. denied 388 U.S. 

919, 87 S.Ct. 2139, 18 L.Ed.2d 1364. 

In Smith, the accused argued that because the demanding 

papers did not allege the victim died and was a human being 

they were defective. The court held that the demanding 

papers need not meet "common law technicalities of pleading" 

and were sufficient if they charged an offense. The defects 

alleged in the case at bar are much more general. 
Nevertheless, the long-standing, universally used rule stated 

above applies. The demanding papers clearly accuse 

petitioner of a crime and are sufficient under section 

46-30-211 (2) , MCA. The other requirement of sub-section (2) , 

that the information or affidavit be authenticated by the 

governor of the demanding state is satisfied as well. The 

document signed by the Governor of Colorado states on its 

face that the complaint/information and affidavit are 

certified by him as authentic in accordance with Colorado 

law. We hold that the demand and accompanying documents 

satisfy all the requirements of section 46-30-211, MCA. 

In the third issue, petitioner ergues that Part 3 of 

Chapter 30, Title 46, MCA imposes time limits on the issuance 

of the governor's warrant. The plain meaning of these 

statutes (adopted from the Uniform Criminal Extradition Act) 

answers this contention. In Application of Simpson (Kan.App. 

1978), 586 P.2d 1389, a complaint was filed in Finney County, 

Kansas, alleging that petitioner was a fugitive from justice 

from Missouri. A fugitive warrant was issued and petitioner 

was admitted to bail. This transpired on September 15, 1977. 

On October 15, 1977, the governor's warrant had not arrived 

and a continuance to December 16, 1977 was granted. On 

December 16, since the governor's warrant still had not been 

received and more than ninety days has elapsed, the 

proceedings in Finney County were dismissed, and petitioner 

was released. Pursuant to the governor's warrant, which 

arrived on December 21, 1977, the petitioner was arrested and 

then petitioned for release. His contention that failure to 

arrest under the governor's warrant within the ninety day 

period operated as a bar to further extradition proceedings, 
was found to be without merit by the Kansas court. The 

Kansas court stated: 

"It is obvious that the sections of the 

Uniform Criminal Extradition Act referred 

to are to prevent the unreasonably 

lengthy periods of confinement of 

fugitives pending consummation of 

extradition proceedings by the demanding 

state. They do not restrict the period 

within which a governor's warrant may be 

issued or executed to the ninety-day 

period contained in those statutes." 

(Citations omitted.) 586 P.2d at 1390. 

We hold that the time limits in section 46-30-302 and -304 

refer only to the length of detention permitted before an 

accused person must be released from custody in the asylum 

state. These sections do not require dismissal of 

extradition proceedings for any supposed time limits on 

issuance of the governor's warrant. 

We further note, for the purpose of clarity, that these 

sections have - no applicability once a governor's warrant has 

been issued. Once the Governor of the State of Montana 

issued his warrant "all questions involving the prior arrest 

and detention are rendered immaterial." 39 C.J.S. S115, 

Habeas Corpus, p. 889. Case law also holds that even if the 

previous detention was irregular, which is not the case here, 

then the governor's warrant renders all such claims moot. 

See Williams v. Leach (Colo. 1977), 572 P.2d 481; In Re Brown 

(Mass. 1976), 346 N.E.2d 830. McCoy v. Cronin (Colo. 1975), 

531 P.2d 379; State ex rel. Holmes v. Spice is. 1975), 229 

N.W.2d 97; Applications of Oppenheimer (Ariz. 1964), 389 P.2d 

696; Also, in Dilworth v. Leach (Colo. 1973), 515 P.2d 1130, 

the Colorado Supreme Court agreed with the above cited 

principle and stated: 

". . . Neither reason nor justice 

requires a change in the wel-1-settled 

principle that the process involved in 
the initial arrest in the asylum state 

becomes moot upon the issuance of the 

governor's warrant." 515 P.2d at 1131. 

Lastly, petitioner contends he was deprived of his 

opportunity for an investigation by the governor under 

section 46-30-212, MCA. This statute does not require the 

accused be given notice of an investigation nor does it 

require an investigation of the demand for extradition. It 

simply gives the governor the discretion to check the 

demanding papers. The legal rule for a century or more has 

been that the executive of the asylum state may act upon the 

requisition papers in absence of the accused and. without 

notice to him. See e.g., Munsey v. Clou.gh (1905) , 196 U.S. 

364, 25 S.Ct. 282, 49 L.Ed. 515; Marbles v. Creecy (1909)~ 

215 U.S. 63, 30 S.Ct. 32, 54 L.Ed. 92 and authorities cited 

in 31 Am.Jur.2d, Extradition, p. 957 and 35 C.J.S. S15, 

Extradition, p. 433. This rule stems from the duty of one 

state to surrender a fugitive from justice on a valid 

requisition from the governor of another state as fixed by 

the United States Constitution. 

"A person charged in any State with 

treason, felony or other crime, who shall 

flee from justice and be found in another 

state, shall on demand of the executive 

authority , of the state from which he 

fled, be delivered up, to be removed to 

the state having jurisdiction. of the 

crime. I' United States Constitution, 

Article 4, S2. 

Section 46-30-201, MCA also makes it the duty of the governor 

to deliver fugitives to the demanding state. His 

investigative authority and the scope of his discretion is 

limited to determining that the person demanded is charged 

with a crime and is a fugitive from justice and the adequacy 

of the demand. The accused is entitled to a hearing with the 

aid of counsel before a judge of a court of record on the 
above issues (section 46-30-217, MCA), but there is - no right 

of the accused to have an investigation by or a hearing or 

other appearance before the governor. The petitioner had a 

hearing in District Court. His second hearing is the ca.se at 

bar. We hold that petitioner was not entitled to either an 

investigation or notice of an investigation conducted by the 

governor when a demand for extradition is made by another 

state. 

Based on the foregoing: 

IT IS HEREBY ORDERED: 

I.. That the petition for writ of habeas corpus is 

dismissed. 

2. That petitioner Donald A. Blackburn, a/k/a Donald 

Blackburn surrender himself to the authorities of Yellowstone 

County, within five (5) days of the date of this order, to be 

delivered to the duly authorized agent of the State of 

Colorado within twenty (20) days to stand trial for the 

charges which form the basis of these proceedings. /"' /. 

DATED this day of April, 1985. / 

/ 

Justices