In re Reed

PETERS, P. J. This is a petition for a writ of habeas corpus to procure the release of petitioner from the custody of the sheriff of Marin County who is holding him preparatory to releasing him to the custody of police officers of the State of Illinois under a requisition from that state. This court issued the writ based upon certain allegations in the petition hereafter mentioned. These allegations were denied in the return to the writ. Since the first hearing, by stipulation, evidence has been secured which supports the finding of this court that the allegations of the petition in question are untrue. This being so, at the second hearing, this court issued, from the bench, its order discharging the writ and remanding the [331]prisoner to custody. This opinion is being filed pursuant to constitutional requirements.

So far as pertinent to the main point involved, the petition, verified by the petitioner, alleges that in 1926, he was committed to the Illinois state penitentiary for a ten-year term; that in December, 1929, he was paroled on condition that he leave the State of Illinois; that he then left that state and has never returned thereto; that in August, 1930, he was convicted of a felony in Louisiana and served a term therefor; that during his service of such term, the State of Illinois filed a detainer with the Louisiana prison officials, hut such detainer was released and withdrawn prior to his release from the Louisiana prison; that in April, 1940, he was again convicted of a felony in Louisiana and once more sentenced to the state prison of that state; that while confined under that sentence, Illinois filed another detainer with the Louisiana authorities, hut the officials of the State of Illinois released such detainer prior to his release from the Louisiana prison; that in 1945, he was convicted of a felony in California and confined in San Quentin, being released therefrom May 22, 1947; that upon his release from San Quentin he was arrested under the Illinois warrant.

Based upon these allegations, and particularly upon those italicized above, this court issued the writ. A majority of this court felt, Justice Ward disagreeing, that if it were true that as early as 1930 the Illinois authorities had canceled the petitioner’s parole, knew his whereabouts, and filed detainers in Louisiana and then canceled them, that they had waived their right to extradite him after his term of parole would otherwise have expired. There is substantial authority both ways on this issue of waiver. Stetson v. Mahoney, 42 F.Supp. 298, and United States v. Ragen, 59 F.Supp. 374, hold that a waiver exists in such a situation. United States v. Ragen, 59 F.2d 356; People v. Becker, 382 Ill. 404 [47 N.E.2d 475], and other cases hold to the contrary.