CO Code § 16-19-111 (2021)
2021 Colorado Code|Title 16 - Criminal Proceedings|Article 19 - Fugitives and Extradition|§ 16-19-111. Rights of Accused - Habeas Corpus

 No person arrested upon such a warrant shall be delivered over to the agent whom the executive authority demanding him has appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this state, who shall inform him of the demand made for his surrender and of the crime with which he is charged and that he has the right to demand and procure legal counsel. If the prisoner or his counsel states that he or they desire to test the legality of his arrest, the judge of the court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting officer of the county in which the arrest is made and in which the accused is in custody and to the agent of the demanding state. Review beyond the court of record shall be only in the supreme court by petition for certiorari, pursuant to such rules as that court may promulgate.   History. Source: L. 53: P. 316, § 10. CSA: C. 72, § 55. CRS 53: § 60-1-10. C.R.S. 1963: § 60-1-10. L. 86: Entire section amended, p. 735, § 6, effective July 1. History. Source: L. 53: P. 316, § 10. CSA: C. 72, § 55. CRS 53: § 60-1-10. C.R.S. 1963: § 60-1-10. L. 86: Entire section amended, p. 735, § 6, effective July 1.    Cross references:   For procedural requirements in habeas corpus, see C.R.C.P. 106; for jurisdiction of the supreme court on writs of certiorari, see C.A.R. 49 to 56.   ANNOTATION   The duty to extradite must be viewed in light of this section. Buffalo v. Tanksley, 189 Colo. 45 , 536 P.2d 827 (1975).   Applicable to all prisoners. Under the extradition act, each prisoner is entitled to petition the district court for a writ of habeas corpus and to obtain a hearing in which extradition can be contested. Moen v. Wilson, 189 Colo. 85 , 536 P.2d 1129 (1975).   Extradition proceedings are summary in nature and the accused is not entitled to all of the procedural safeguards of a criminal trial. Luker v. Koch, 176 Colo. 75 , 489 P.2d 191 (1971).   An extradition hearing is not designed or intended to accomplish a determination of guilt or innocence, and is only summary in nature. Eathorne v. Nelson, 180 Colo. 288 , 505 P.2d 1 (1973).   Habeas corpus proceedings are civil rather than criminal in nature, concerned only with the prisoner's right to liberty, notwithstanding the particular act for which he is detained, and is separate from the legal proceedings under which the detention is sought to be justified. Luker v. Koch, 176 Colo. 75 , 489 P.2d 191 (1971).   Habeas corpus is an independent civil proceeding separate and apart from the case in which the criminal charge which initiates the extradition proceedings is filed. People v. Lent, 187 Colo. 248 , 529 P.2d 1317 (1975).   But criminal safeguards attach regardless of formal designation of a proceeding if the proceeding substantively involves incarceration or other criminal sanctions. Mora v. District Court, 177 Colo. 381 , 494 P.2d 596 (1972).   Despite a common-law and constitutional tradition which treat habeas corpus as a civil matter and as a matter to which criminal due process safeguards do not attach, the supreme court is of the opinion that this tradition does not comport with recent developments in the constitutional law. The administration of criminal procedural safeguards must look beyond form to substance. Mora v. District Court, 177 Colo. 381 , 494 P.2d 596 (1972).   Section provides right to counsel. The language of this section establishes a right to the presence of legal counsel, and due process requirements prohibit the denial of this right to indigents when it has been made available to those able to afford counsel. Mora v. District Court, 177 Colo. 381 , 494 P.2d 596 (1972).   Indigent's right to counsel on appeal. Where a person is indigent, the right to appointed counsel and a free transcript for appellate review extends to an appeal of the denial of a writ of habeas corpus in extradition proceedings. Denbow v. District Court, 652 P.2d 1065 (Colo. 1982).   It requires advising by judge and counsel. The statute expressly requires that a person arrested on a governor's warrant shall be brought before a judge to be advised of the demand made for his surrender and of the crime of which he is charged, and that he has a right to procure legal counsel to test the legality of his arrest. Conrad v. McClearn, 166 Colo. 568 , 445 P.2d 222 (1968).   It is clear and its requirements are not merely directory but mandatory. Krutka v. Bryer, 150 Colo. 293 , 372 P.2d 83 (1962).   The only proper respondent in a habeas corpus proceeding is the person who allegedly is detaining the petitioner unlawfully, and neither the governor nor the people of the state of Colorado is such a person. People v. Lent, 187 Colo. 248 , 529 P.2d 1317 (1975).   Habeas corpus is the only judicial review available to an accused in extradition proceedings. Capra v. Miller, 161 Colo. 448 , 422 P.2d 636 (1967).   Under this section a party held in custody under a warrant of extradition may test the validity thereof by a writ of habeas corpus. Krutka v. Bryer, 150 Colo. 293 , 372 P.2d 83 (1962); Gagan v. Gately, 673 F. Supp. 1029 (D. Colo. 1987 ).   In the absence of such writ a trial court has no jurisdiction and no issue before it to resolve. Krutka v. Bryer, 150 Colo. 293 , 372 P.2d 83 (1962).   This section contemplates a hearing on the legality of the prisoner's detention, if he requests one, and such a hearing can be had only when a writ of habeas corpus has been duly applied for by the prisoner and issued by the court. Osborne v. Van Cleave, 166 Colo. 398 , 443 P.2d 988 (1968).   Inquiry in habeas corpus proceeding severely restricted. In the interests of comity and speedy resolution of extradition matters, the inquiry by the courts of Colorado, the asylum state, in a habeas corpus proceeding, is severely restricted, and the accused is left to pursue his remedies in the courts of the demanding state. Rush v. Baker, 188 Colo. 136 , 533 P.2d 36 (1975).   Scope of inquiry limited. The scope of inquiry in a habeas corpus proceeding in the context of a request for extradition under this article is narrowly limited to the issues of: (1) The technical sufficiency of the extradition papers; (2) identification of the accused; (3) whether the accused is charged with a crime; and (4) whether the accused is a fugitive from justice. Lomax v. Cronin, 194 Colo. 523 , 575 P.2d 1285 (1978); Steinman v. Caldwell, 628 P.2d 110 (Colo. 1981); Gagan v. Gately, 673 F. Supp. 1029 (D. Colo. 1987 ).   At habeas corpus proceedings to consider the validity of an extradition warrant, the only questions which may be presented to the court by the habeas corpus petition are whether the prisoner is lawfully detained and whether the requirements of extradition have been met. Massey v. Wilson, 199 Colo. 121 , 605 P.2d 469 (1980); Simmons v. Leach, 626 P.2d 164 (Colo. 1981).   When asylum state's court to make determination of probable cause. The fourth amendment interests of a person against whom extradition is sought are protected upon a habeas corpus review where the courts of the asylum state examine the extradition documents to determine whether probable cause has been found by a neutral court in the demanding state. If no determination of probable cause by the courts of the demanding state appears in the extradition documents, the courts in the asylum state are required to make an independent determination from the extradition documents as to whether probable cause exists. Lutrell v. Williams, 660 P.2d 499 (Colo. 1983).   Courts in asylum state have no duty to inquire into substantive law and pleading practices of the demanding state. Simmons v. Leach, 626 P.2d 164 (Colo. 1981).   Court may not nullify extradition on own motion. A trial court may not disregard the provisions of this section and of its own motion nullify an extradition warrant without the filing of a petition for a writ of habeas corpus by the accused showing substantial grounds why the extradition should not be enforced. Krutka v. Bryer, 150 Colo. 293 , 372 P.2d 83 (1962).   The accused has the right to proffer evidence in aid of his discharge. Krutka v. Bryer, 150 Colo. 293 , 372 P.2d 83 (1962).   But not to try questions of guilt or innocence. The guilt or innocence of the alleged fugitive may not be considered by the court of the asylum state in habeas corpus proceedings. Dressel v. Bianco, 168 Colo. 517 , 452 P.2d 756 (1969).   Since an extradition proceeding is designed only to convey the petitioner to the proper jurisdiction for trial, his guilt or innocence and any issue as to his sanity as it relates to his guilt or innocence or ability to stand trial are not issues at the extradition hearing, but rather at the trial in the demanding state. Luker v. Koch, 176 Colo. 75 , 489 P.2d 191 (1971).   Although questions concerning the petitioner's sanity as it affects his ability to stand trial are properly addressed to courts in the demanding state, the petitioner's competency may also be the subject of inquiry by the asylum state if it affects the petitioner's ability to understand and assist counsel in handling the issues involved in the habeas corpus proceeding itself. Gagan v. Gately, 673 F. Supp. 1029 (D. Colo. 1987 ).   Such as date of crime. In an extradition hearing, the time of the commission of the crime is material; however, the precise date alleged does not necessarily have to be proved and where, for the purpose of extradition, trial court ruled that any date in a certain month was sufficient to advise accused of the charge against him, it was held that under the evidence and special circumstances of the case, trial court's ruling was correct. Osborne v. Van Cleave, 173 Colo. 26 , 475 P.2d 625 (1970).   Or alibi. Habeas corpus is not the proper proceeding to try the question of alibi, or any question as to the guilt or innocence of the accused. Osborne v. Van Cleave, 173 Colo. 26 , 475 P.2d 625 (1970); Eathorne v. Nelson, 180 Colo. 288 , 505 P.2d 1 (1973).   Or validity of arrest or detention. The fugitive cannot, in opposition to proper extradition proceedings, urge the fact that his original arrest or detention was illegal, once proceedings have been instituted, it is too late to claim that the preliminary detention in the asylum state was illegal. Travis v. People, 135 Colo. 141 , 308 P.2d 996 (1957).   The fact that the defendant was originally arrested in Colorado on a charge different than the one upheld by requisition is immaterial and moot. Extradition proceedings on the charge of passing a worthless check were properly instituted and the validity of his initial arrest is not in issue in the proceeding to determine whether the discharge of the person was valid. Capra v. Miller, 161 Colo. 448 , 422 P.2d 636 (1967).   The illegality of an initial arrest cannot be challenged in an extradition proceeding growing out of that arrest. Luker v. Koch, 176 Colo. 75 , 489 P.2d 191 (1971).   Where accused petitioned for writ of habeas corpus after issuance of governor's warrant for accused's extradition to another state, any issue arising out of any alleged wrongful detention preceding the service of the governor's warrant was moot. Crumrine v. Erickson, 186 Colo. 139 , 526 P.2d 148 (1974).   Once the governor's warrant has been issued, the question of the validity of the initial arrest becomes moot and may not be raised in habeas corpus proceedings which test the validity of the detention under the governor's warrant. McCoy v. Cronin, 187 Colo. 364 , 531 P.2d 379 (1975).   After a valid governor's warrant has been issued and served, any illegalities and irregularities which relate to the initial arrest of the fugitive become moot. Simmons v. Leach, 626 P.2d 164 (Colo. 1981).   Or violations of parole. In habeas corpus proceedings involving extradition the courts cannot consider the question of whether or not the petitioner has violated his parole. Travis v. People, 135 Colo. 141 , 308 P.2d 997 (1957).   Or the constitutionality of statute charging crime in demanding state. Accused could not avoid extradition to another state on argument that statute charging him with crime in other state was unconstitutional. Rather, the principle of comity required the accused to test the statute's constitutionality in the courts of that state. Denton v. Cronin, 187 Colo. 247 , 529 P.2d 644 (1974).   Or death penalty. Where accused proposes that Colorado ought not give aid and assistance to Oklahoma in enforcing its death penalty which he alleges is unconstitutional, this position presents no issue justiciable in the Colorado courts in an extradition proceeding. Pickinpaugh v. Lamm, 189 Colo. 143 , 538 P.2d 113 (1975).   Defendant's claim that his federal constitutional rights were violated in the asylum state does not require habeas corpus relief, nor does it deprive the Colorado courts of jurisdiction over the defendant. Yellen v. Nelson, 680 P.2d 234 (Colo. 1984).   Alleged denial of speedy trial and due process by demanding state. Issues of whether petitioner has been denied his constitutional rights to a speedy trial and due process by demanding state's delay in proceeding with extradition are not justiciable in a habeas corpus action brought in Colorado grounded upon a demand for extradition. Simmons v. Leach, 626 P.2d 164 (Colo. 1981).   When prisoner released for state's failure to comply with constitutional requirements, he remains subject to extradition proceedings. When the prisoner is released because the demanding state or the asylum state has failed to comply with statutory or constitutional requirements, the prisoner remains a fugitive from the demanding state and subject to that state's constitutional right to demand his return. Massey v. Wilson, 199 Colo. 121 , 605 P.2d 469 (1980).   Effect of writ on prosecution of underlying charge. Where New Mexico properly granted a writ of habeas corpus on the grounds of technical insufficiency of the extradition documents, Colorado is not estopped from prosecuting the defendant on the merits of the underlying charges. People v. Coyle, 654 P.2d 815 (Colo. 1982).   Courts of asylum state may not consider certain allegations. The courts of the asylum state in a habeas corpus proceeding under this article may not properly consider allegations that the fugitive's life would be endangered by return to the demanding state. The accused, in respect to this matter, must pursue his remedies in the demanding state or with the executive of the asylum state. Lomax v. Cronin, 194 Colo. 523 , 575 P.2d 1285 (1978).   Identification testimony at extradition hearing is not tested by same standards applied at trial on the merits. Eathorne v. Nelson, 180 Colo. 288 , 505 P.2d 1 (1973).   Sanity a question only if accused unable to assist counsel. The only conceivable situation in which a court in the asylum state might be required to consider sanity would be one in which the petitioner is so incompetent as to be totally unable to assist his counsel in a habeas corpus proceeding in connection with a pending extradition. Luker v. Koch, 176 Colo. 75 , 489 P.2d 191 (1971).   “Total inability to assist counsel” test disavowed in favor of “sufficient present ability to consult with attorney” test. Pruett v. Barry, 696 P.2d 789 (Colo. 1985).   Issue is right of demanding state to defendant's return. Constitutional rights to limitations on the use of evidence on the issue of guilt or innocence are not at issue in the rendition proceeding. What is in issue is the constitutional right of the demanding state to have the defendant promptly returned to that state on a showing of probable cause. North v. Koch, 169 Colo. 508 , 457 P.2d 915 (1969).   This involves narrow determination of compliance with statute. Habeas corpus, in the instance of interstate extradition, involves a narrow determination of whether there has been compliance with the statutory elements of whether the petitioner: (1) Was present in the demanding state at the time charged in the governor's warrant and the extradition proceedings; (2) was substantially charged with a crime; and (3) is a fugitive from justice. Petition of Harwell, 180 Colo. 144 , 503 P.2d 618 (1972).   The scope of inquiry in habeas corpus proceedings is narrowly limited to the technical sufficiency of the papers and: (1) The identification of the accused; (2) whether the accused has been charged with a crime; and (3) whether the accused is a fugitive from justice. Luker v. Koch, 176 Colo. 75 , 489 P.2d 191 (1971).   A habeas corpus proceeding has limited scope and is intended to resolve the issue of whether the person in custody is lawfully detained. Eathorne v. Nelson, 180 Colo. 288 , 505 P.2d 1 (1973).   Evidence required to overcome presumption of validity. An accused who seeks to invalidate an extradition must overcome the presumption of validity afforded by the governor's warrant by clear and convincing evidence. Lomax v. Cronin, 194 Colo. 523 , 575 P.2d 1285 (1978).   The warrant of arrest is prima facie evidence of the recitals therein in a habeas corpus proceeding. Capra v. Miller, 161 Colo. 448 , 422 P.2d 636 (1967).   The warrant of the governor as to the status of the accused as a fugitive from justice of the demanding state is prima facie proof of such status which must be overcome to justify a discharge from custody. Krutka v. Bryer, 150 Colo. 293 , 372 P.2d 83 (1962).   It places the burden upon the accused to show either that he is not a fugitive from justice or that he was not substantially charged with a crime in the demanding state. Capra v. Miller, 161 Colo. 448 , 422 P.2d 636 (1967).   A petitioner who believes that the demanding state's requisition papers do not support the warrant of the governor of the asylum state has the responsibility of going forward with the matter and controvert the warrant by introducing the requisition papers into evidence. Mote v. Koch, 173 Colo. 82 , 476 P.2d 255 (1970).   The burden is to show by clear and convincing evidence that defendant was absent at the time of the crime charged from Texas. Dressel v. Bianco, 168 Colo. 517 , 452 P.2d 756 (1969).   The courts will not discharge a defendant arrested under a governor's warrant where there is merely contradictory evidence on the subject of presence in or absence from the state. Osborne v. Van Cleave, 173 Colo. 26 , 475 P.2d 625 (1970); Eathorne v. Nelson, 180 Colo. 288 , 505 P.2d 1 (1973).   The burden is upon the accused to come forward with clear and convincing proof that he was not in the demanding state at the time of the crime charged or that he was not the fugitive from justice named in the extradition papers, in order to overcome the presumption which attaches to the governor's warrant that the accused was in the demanding state at the time of the crime. Luker v. Koch, 176 Colo. 75 , 489 P.2d 191 (1971).   Absence from the demanding state is a defense which may be raised and proven by a petitioner in order to defeat extradition. Luker v. Koch, 176 Colo. 75 , 489 P.2d 191 (1971).   A habeas corpus petitioner charged as an out-of-state fugitive, not the sheriff-respondent, has the burden of going forward with clear and convincing evidence to prove that he was not in the demanding state at the time of the crime or that he is not the individual named in the extradition papers. Ede v. Bray, 178 Colo. 99 , 495 P.2d 1139 (1972).   The burden is on the accused to show by clear and satisfactory evidence that he was not present if he is to overcome the presumption created by the warrant which governor of Colorado issues that the accused is in the demanding state at the time the offense was committed. Eathorne v. Nelson, 180 Colo. 288 , 505 P.2d 1 (1973).   Or that he had not left the state. To demonstrate that he was not a fugitive from justice, the defendant would have to show either that he was not present in the state demanding extradition at the time that the crime allegedly was committed, or that he had not left the state. Fox v. People, 161 Colo. 163 , 420 P.2d 412 (1966).   The presumption raised by a governor's warrant in an asylum state in a habeas corpus proceeding may be overcome either by a petitioner showing that he was not within the demanding state at the time the crime was committed or that he has not since left the state. Harding v. People, 161 Colo. 571 , 423 P.2d 847 (1967); Luker v. Koch, 176 Colo. 75 , 489 P.2d 191 (1971).   Burden shifted to petitioner to disprove identity. Where the petitioner's name in the requisition of governor of New Mexico was identical to the name appearing in the Colorado governor's warrant, this created a prima facie showing of identity and shifted the burden to petitioner to disprove the identity. Dilworth v. Leach, 183 Colo. 206 , 515 P.2d 1130 (1973).   The introduction of the governor's warrant and the supporting requisition documents created a prima facie showing of identity and shifted the burden to appellant to show that the state did not properly identify him as the person sought by the requisitioning state. Dominguez v. Bray, 188 Colo. 72 , 532 P.2d 950 (1975).   Photo competent evidence of identity. Where an authenticated prison photo of the petitioner accompanied the extradition documents from New Mexico, the photo was competent evidence of identity. Dilworth v. Leach, 183 Colo. 206 , 515 P.2d 1130 (1973).   State allowed time to cure defective affidavit. In a habeas corpus proceeding a state should be permitted a reasonable time to cure a defective extradition affidavit, but if the affidavit is not cured within 15 days the writ of habeas corpus becomes absolute, and the accused is entitled to release from custody. People v. McFall, 175 Colo. 151 , 486 P.2d 6 (1971).   It is within the trial court's discretion to allow a reasonable time for correction of defective extradition documents instead of causing the entire process to be repeated. Williams v. Leach, 194 Colo. 374 , 572 P.2d 481 (1977).   Failure of sheriff to make formal return to writ not prejudicial. While the better and approved practice is for a sheriff to make a formal return to a writ of habeas corpus in an extradition matter, where all extradition documents were before the trial court and the validity of the detention was determined without objection that such formal return had not been filed, and the substantial rights of the petitioner were not adversely affected thereby, he cannot be heard to complain for the first time in the supreme court that no formal return was made. Bright v. Foster, 150 Colo. 559 , 374 P.2d 865 (1962).   Nor was failure of district attorney to answer interrogatories. Where a district attorney failed to answer all interrogatories served upon him by a habeas corpus petitioner questioning extradition proceedings, which interrogatories involved matters entirely foreign to the rather limited issues involved in an extradition proceeding, any error arising out of such failure on the part of the district attorney could not have been prejudicial. Mote v. Koch, 173 Colo. 82 , 476 P.2d 255 (1970).   Denial of petition for writ of habeas corpus held correct. People v. Jackson, 180 Colo. 134 , 502 P.2d 1106 (1972); Boyd v. Van Cleave, 180 Colo. 403 , 505 P.2d 1305 (1973).   Denial of petition for habeas corpus held error. Moog v. Williams, 195 Colo. 237 , 577 P.2d 6 (1978).   Appellate review procedures for habeas corpus petitions contesting transfers of temporary custody under article IV of the Interstate Agreement on Detainers, § 24-60-501 , shall be by petition for certiorari and not an appeal of right. Semendinger v. Brittain, 770 P.2d 1270 (Colo. 1989).   Applied in Dorador v. Cronin, 199 Colo. 85 , 605 P.2d 53 (1980); Beals v. Wilson, 631 P.2d 1181 (Colo. App. 1981).