Leroy Henderson v. Circuit Court of the Tenth Jud. Circuit, State of Alabama, 392 F.2d 551 (5th Cir. 1968). · Go Syfert
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Leroy Henderson v. Circuit Court of the Tenth Jud. Circuit, State of Alabama, 392 F.2d 551 (5th Cir. 1968). Cases Citing This Book View Copy Cite
21 citation events across 4 distinct courts.
Strongest positive: Edward Garrett Hoskins v. Louie L. Wainwright, Director, Division of Corrections, State of Florida (ca5, 1972-12-21)
Treatment trajectory · 1968 → 2026 · click a year to view as-of
1968 1997 2026
Top citers, strongest first. 8 distinct citers.
discussed Cited as authority (rule) Edward Garrett Hoskins v. Louie L. Wainwright, Director, Division of Corrections, State of Florida
5th Cir. · 1972 · confidence medium
We must follow Henderson v. Circuit Court of the Tenth Judicial Circuit, State of Alabama, 5 Cir., 1968, 392 F.2d 551 — which predates Smith v. Hooey, 1969, 393 U.S. 374 , 89 S.Ct. 575 , 21 L.Ed. 2d 607 and is still the law for the times in question here — and likewise conclude that there was no inordinate delay.
cited Cited as authority (rule) United States v. James Dock Mitchell
8th Cir. · 1970 · confidence medium
See Bistram v. Minnesota, 330 F.2d 450, 453 (8 Cir. 1964); Henderson v. Circuit Court, 392 F.2d 551, 552 (5 Cir. 1968).
discussed Cited as authority (rule) John Von Hauten v. State of Texas
5th Cir. · 1969 · confidence medium
Relief was denied on authority of Henderson v. Circuit Court of the Tenth Judicial Circuit, State of Alabama, 5 Cir. 1968, 392 F.2d 551 . 2 The appellee has filed a motion to dismiss the appeal upon a showing that the detainer and pending state charge have been withdrawn. 3 The motion is granted and the appeal is hereby dismissed. 4 Appeal dismissed.
cited Cited as authority (rule) Von Hauten v. Texas
5th Cir. · 1969 · confidence medium
Relief was denied on authority of Henderson v. Circuit Court of the Tenth Judicial Circuit, State of Alabama, 5 Cir. 1968, 392 F.2d 551 .
cited Cited as authority (rule) Leon M. Ruhl v. Alvin B. Lewis, Jr., Prosecuting Attorney and G. K. Gates, P. J., for Lebanon County, Pa.
5th Cir. · 1968 · confidence medium
Henderson v. Circuit Court of the Tenth Judicial Circuit, State of Alabama, 5 Cir. 1968, 392 F.2d 551 ; Ditzler v. Blackwell, 5 Cir. 1968, 392 F.2d 586 .
cited Cited "see" Sanders v. United States
N.D. Ga. · 1969 · signal: see · confidence high
See Henderson v. Circuit Court of the 10th Judicial Circuit, State of Alabama, 392 F.2d 551 (5th Cir. 1968), and cases therein cited.
cited Cited "see, e.g." Yoo Kun Wha v. Sheriff of Fulton County, State of Georgia
5th Cir. · 1971 · signal: see, e.g. · confidence low
See, e. g., Henderson v. Circuit Court, 5 Cir. 1968, 392 F.2d 551 .
discussed Cited "see, e.g." ca5 1971
5th Cir. · 1971 · signal: see, e.g. · confidence low
See, e.g., Henderson v. Circuit Court, 5 Cir. 1968, 392 F.2d 551 . 3 January 1969, the Supreme Court decided that a state does have a constitutional obligation to make a diligent, good-faith effort to bring such a defendant to trial by seeking extradition from the custody state.
Leroy HENDERSON, Appellant,
v.
CIRCUIT COURT OF the TENTH JUDICIAL CIRCUIT, STATE OF ALABAMA Et Al., Appellees
25221_1.
Court of Appeals for the Fifth Circuit.
Apr 22, 1968.
392 F.2d 551
Leroy Henderson, pro se., David W. Clark, Asst. Atty. Gen., Montgomery, Ala., for appellees.
Godbold, Simpson, Merae.
Cited by 19 opinions  |  Published
PER CURIAM:

Leroy Henderson, the appellant, petitioned for dismissal of an Alabama state felony charge and a detainer against him when he was serving a federal sentence in Atlanta, on the ground that the state had denied him a speedy trial while he was in federal custody. The district court denied relief and we affirm.

The appellant avers that while he was free on bail relative to the Alabama charge of “possession of a pistol after conviction of a felony”, he departed that state; was sentenced to serve two years in a Georgia state court; escaped; and subsequently was convicted and sentenced for violation of the Dyer Act, Title 18, U.S.C. Section 2312.

From the record it further appears that the appellant has completed service of his federal sentence and presently is[*552] serving the remainder of his Georgia state sentence. We have no doubt that the State of Alabama could have obtained custody of the appellant for purposes of trial during service of his federal sentence, had the state desired to do so.

The appellant contends that the refusal of the State of Alabama to bring him to trial by means of a writ of habeas corpus ad prosequendum deprived him of his right to a speedy trial in violation of his constitutional rights under the Sixth and Fourteenth Amendments. He alleges further that during the delay, two of his defense witnesses have died, so that he could not receive a fair trial now or in the future.

The applicable law was well stated in McCary v. State of Kansas, 10 Cir. 1960, 281 F.2d 185, 187, as follows:

“It is well settled that the failure of a state to bring a defendant to trial on a state charge during the period of his confinement in a federal penal institution on a federal charge will not support a claim of denial of a speedy trial by the state court. The reason for the rule is that he is in custody in the federal penal institution because of his own wrongdoing and is beyond the custody and control of the state court, even though the federal government might grant the request of the state for custody of the defendant for the purpose of trial on the state charge.”

No case has come to our attention which authorizes the United States courts to require a state to invoke comity to obtain custody of a federal prisoner in order to try him on a state charge; the authority is to the contrary. It has been uniformly held that whether a state shall invoke comity to obtain a federal prisoner for trial upon a state charge is a matter within its discretion and is not subordinate to any personal right of the prisoner. Ponzi v. Fessenden, 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607 (1922); Stamphill v. United States, 10 Cir. 1943, 135 F.2d 177; In re Yager, D.C.E.D.Ky. 1956, 138 F.Supp. 717.

As the court observed in State of Maryland v. Kurek, D.C.D.Md. 1964, 233 F.Supp. 431, 433, a defendant “may raise the point that he has been denied a speedy trial if and when he is brought to trial in the State Court; if he unsuccessfully exhausts his State remedies in connection therewith, he may seek relief by habeas corpus in * * * Federal Court. Hunt v. Warden, 4 Cir., 335 F.2d 936 (1964); Edmondson v. Warden, 4 Cir., 335 F.2d 608 (1964). * * * ” Accord: Bistram v. People of State of Minnesota, 8 Cir. 1964, 330 F.2d 450; Petition of Freeze, D.C.E.D.S.Car. 1964, 234 F.Supp. 427. This course of action will be open to the appellant in the event that the State of Alabama prosecutes him on the indictment pending against him there.

The judgment of the district court is affirmed.