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Harvey v. Antrim (5/4/2007) ap-2096

Harvey v. Antrim (5/4/2007) ap-2096

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


JOSEPH HARVEY, )
) Court of Appeals No. A-9839
Petitioner, )
)
v. )
)
MARK ANTRIM, ALASKA ) O P I N I O N
COMMISSIONER OF CORRECTIONS, )
and FRANK LUNA, WARDEN, )
) No. 2096 May 4, 2007
Respondents. )
)
          Original Application for Relief in the Nature
          of Mandamus

          Appearances:   Joseph  Harvey,   in   propria
          persona,  Eloy, Arizona, for the  Petitioner.
          Douglas  Kossler, Assistant Attorney General,
          Office  of Special Prosecutions and  Appeals,
          Anchorage,  and  Talis J.  Colberg,  Attorney
          General, Juneau, for the Respondent.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          Joseph Harvey is currently imprisoned as the result  of
a  criminal judgement entered against him by the superior  court.
For  the  facts  of Harveys underlying criminal  case,  see  this
Courts  decision  in  Todd v. State, 884 P.2d  668  (Alaska  App.
1994).
          The  Commissioner  of  Corrections  has  directed  that
Harvey  serve his sentence in a private prison in Arizona  (under
contract  with  the  Alaska  Department  of  Corrections).    The
respondent Frank Luna is the warden of that Arizona prison.
          Harvey  has filed a petition for writ of habeas  corpus
in  the  superior court  (File Number 3AN-05-7744 Civ).  In  that
petition,  Harvey challenges certain procedures involved  in  his
prosecution  and sentencing.  In addition, Harvey  has  filed  an
original  application  for relief in  the  appellate  courts   an
application which he entitled a Petition for Habeas Corpus Relief
From  Void  Judgments.   (Harvey directed this  petition  to  the
Alaska  Supreme  Court,  but the Appellate  Court  Clerks  Office
concluded  that Harveys petition was properly addressed  to  this
Court, since Harvey is seeking relief from a criminal conviction.
See AS 22.07.020(a).)
          Although it is difficult to tell from Harveys pleadings
exactly  what his arguments are, it appears that these  arguments
involve  a  challenge  to  Alaskas pre-2005  sentencing  statutes
(based on the United States Supreme Courts decision in Blakely v.
Washington,  542  U.S.  296,  124 S.Ct.  2531,  159  L.Ed.2d  403
(2004)),  as  well as a challenge to Alaskas laws  governing  the
appointment  of counsel for indigent criminal defendants.   These
underlying  claims have not yet been litigated,  because  Harveys
appeal has not yet reached the briefing stage.
          The  issue we address in this opinion arises  from  the
fact  that,  after Harvey filed his Petition for ... Relief  From
Void  Judgments,  he then filed a separate claim  for  relief   a
pleading  which he entitled a Motion ... to Vacate All Judgments,
Orders,  and  Opinions  Issued In This Matter.   In  this  latest
pleading   which  we are treating as an original application  for
relief in the nature of mandamus  Harvey contends that the Alaska
courts  have no authority to entertain any litigation  concerning
the  legality  of  his  restraint, and that we  should  therefore
declare all judicial proceedings up to this point null and  void.
Harvey  argues that the Alaska courts lost all jurisdiction  over
him  when the Commissioner of Corrections transferred him to  the
prison  in Arizona (that is, to a location outside the geographic
boundaries of Alaska).
          On  March 13, 2007, a member of this Court (the  author
of  this  opinion) issued a single-judge order rejecting  Harveys
argument  and  concluding  that the courts  of  Alaska  have  the
authority to adjudicate Harveys habeas corpus claims even  though
Harvey is physically located in Arizona.  Harvey now seeks  full-
court reconsideration of that single-judge order.
          It is clear that, under AS 22.10.020(a) and 020(c), and
under  AS  22.07.020(a), both the superior court and  this  Court
have  subject-matter  jurisdiction over Harveys  application  for
habeas  corpus relief.  But Harvey argues that no court in Alaska
has  the requisite personal jurisdiction to entertain his  claims
for relief  both because he himself is physically located outside
the  boundaries  of Alaska, and because his immediate  custodian,
Warden Frank Luna, is likewise physically located outside Alaska.
          The  fact  that Harvey is serving his sentence  outside
the  physical  boundaries of Alaska does not negate  this  states
jurisdiction  over him.  See Hertz v. State,  22  P.3d  895,  900
(Alaska App. 2001):  Alaska courts have long recognized that  the
State  retains jurisdiction over inmates transferred  to  foreign
jurisdictions  to  serve sentences for crimes committed  in  this
state.
          However,  Harvey  relies  on decisions  of  the  United
States   Supreme   Court  indicating  that,  in   habeas   corpus
litigation, the crucial element of personal jurisdiction does not
refer to the courts jurisdiction over the person whose liberty is
sought,  but rather to the courts jurisdiction over the custodian
whose  act  of restraint is being challenged.  This is because  a
writ  of habeas corpus is a court order directed to the custodian
of the person whose restraint is in question  an order commanding
the  custodian  to  appear  in court  and  demonstrate  that  the
restraint is lawful.
          See  Braden v. 30th Judicial Circuit Court of Kentucky,
410  U.S.  484,  93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), where  the
United  States  Supreme Court held that when a  federal  district
court  is adjudicating a petition for writ of habeas corpus,  the
prisoners  presence  within the territorial jurisdiction  of  the
court  is not an invariable prerequisite to the exercise  of  the
district courts jurisdiction.  Id., 410 U.S. at 495-98, 93  S.Ct.
at  1130-31.   Because [t]he writ of habeas corpus does  not  act
upon the prisoner who seeks relief, but upon the person who holds
him in what is alleged to be unlawful custody, a federal district
court  can  entertain a habeas corpus petition  under  28  U.S.C.
2241  as  long  as  the custodian can be reached  by  service  of
process.  Id., 410 U.S. at 494-95, 93 S.Ct. at 1129-1130.
          Although  it  appears that a court must  normally  have
jurisdiction  over  the prisoners custodian, the  Alaska  Supreme
Court  has clarified that, at least for purposes of habeas corpus
litigation involving criminal matters, the custodian named as the
respondent  in habeas corpus litigation need not be a person  who
has  immediate  physical control of the prisoner.   Instead,  the
respondent  can  be a person  for instance, the  Commissioner  of
Corrections  who has the authority to order the people  who  have
immediate  physical  control  of  the  prisoner  to  produce  the
prisoner before the court.
          
               The   fact   that   [a  habeas   corpus]
          petitioner  is  outside the State  of  Alaska
          [does]  not  defeat a writ if  in  fact  [the
          named  respondent]  does  have  authority  to
          order   the  prisoner  returned  to   Alaska.
          [Because  the] petitioner [in this  case]  is
          now  confined  in  a Federal  Prison  at  the
          instance  of  a State official,  ...  a  writ
          directed to the State official with directive
          power to order his return and release by  his
          Federal jailers would [be proper].
          
          Application  of  House,  352  P.2d  131,  135
          (Alaska 1960).
          When Harvey filed his petition  for
writ   of  habeas  corpus  in  the  appellate
courts,  he  named two respondents.   One  of
these respondents was Mark Antrim, the Alaska
Commissioner  of  Corrections.   (Since  that
time,  Mr.  Antrim has left  that  post;  the
current commissioner of corrections is Joseph
Schmidt.)   The  other named  respondent  was
Frank  Luna,  the warden of the  correctional
facility  in Arizona where Harvey is  housed.
Under  Alaska law, both Antrim and Luna  were
proper respondents.  Luna had direct physical
control   of  Harvey,  and  Antrim  had   the
authority  to  direct Luna to release  Harvey
from  confinement in Arizona so  that  Harvey
could  be  produced to the superior court  in
Alaska.
          Harvey apparently concedes that the
courts  of  Alaska have personal jurisdiction
over  former  Commissioner  Antrim  and   his
successor,  Commissioner  Schmidt.   We   say
apparently   concedes  because,  in   Harveys
motion  for  reconsideration of  the  single-
judge  order,  Harvey  has  crossed  out  the
reference  to the Commissioner of Corrections
in  the  caption  of  his  pleading,  leaving
Warden  Frank  Luna  as the  sole  respondent
whose name is clearly legible.
          In  his motion for reconsideration,
Harvey argues that the courts of Alaska  have
no   jurisdiction  over  his  habeas   corpus
litigation because the Alaska courts have  no
personal   jurisdiction  over  his  immediate
custodian,   Warden  Luna.    Harvey   relies
primarily on the United States Supreme Courts
decision  in  Rumsfeld v. Padilla,  542  U.S.
426, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004).
          Padilla  involved a person who  was
imprisoned  in  the Navy brig in  Charleston,
South  Carolina.  Id., 542 U.S. at  432,  124
S.Ct.  at  2716.  Padilla sued  for  writ  of
habeas  corpus,  but  he named  Secretary  of
Defense  Donald  Rumsfeld as the  respondent,
and  he  filed  his lawsuit  in  the  federal
district  court for the Southern District  of
New York.  The Supreme Court held that, under
the   terms  of  the  federal  habeas  corpus
statute,  28  U.S.C.   2241,  and  under  the
circumstances  of  Padillas  case,  the  only
proper  respondent to Padillas  petition  for
writ  of  habeas corpus was the commander  of
the navy brig where he was being held:

     In  accord with the ... language [of the
federal  habeas  corpus  statute]  and  [the]
immediate custodian rule [announced in  Wales
v.  Whitney, 114 U.S. 564, 574; 5 S.Ct. 1050;
29 L.Ed. 277 (1885)], ... the default rule is
that  the proper respondent [in habeas corpus
litigation]  is  the warden of  the  facility
where  the  prisoner is being held,  not  the
Attorney   General  or  some   other   remote
supervisory official. [Citations omitted]  No
exceptions to this rule, either recognized or
proposed,  see  post, at 2729  (KENNEDY,  J.,
concurring), apply here.

Padilla,  542  U.S. at 435-36, 124  S.Ct.  at
2718.  And, because the proper respondent was
the commander of the Navy brig in Charleston,
the  proper court for Padillas habeas  corpus
litigation was the federal district court for
the  District  of South Carolina.   Id.,  542
U.S. at 442, 451, 124 S.Ct. at 2722, 2727.
          Based   on  the  Padilla  decision,
Harvey   argues   that  his   habeas   corpus
litigation  can take place only  in  a  court
that  has  personal  jurisdiction  over   his
immediate  custodian  Frank Luna, the  warden
of the prison where Harvey is confined.
          There   are  Supreme  Court   cases
suggesting that personal jurisdiction over  a
prisoners immediate custodian is not required
in  all instances.  See Padilla, 542 U.S.  at
436  n. 9, 124 S.Ct. at 2718 n. 9, where  the
Court acknowledged a [longstanding] exception
to   the  immediate  custodian  rule  in  the
military context where an American citizen is
detained outside the territorial jurisdiction
of  any  district court.  See also  Rasul  v.
Bush,  542 U.S. 466, 478-79; 124 S.Ct.  2686,
2695;  159 L.Ed.2d 548 (2004), a case decided
on  the  same  day as Padilla, in  which  the
Supreme  Court held that the federal district
court  for  the  District  of  Columbia   had
jurisdiction  to consider the  petitions  for
writ   of  habeas  corpus  filed  by  foreign
nationals  being detained as enemy combatants
at  the U.S. Naval Station in Guantanamo Bay,
Cuba   an enclave that, technically, is  part
of  Cuba  and  lies outside  the  territorial
jurisdiction  of  the  United  States,   even
though  (as  a practical matter)  the  United
States  exercises complete control  over  the
area.
          But we need not resolve these outer
reaches    of   a   courts   habeas    corpus
jurisdiction   because, under  the  facts  of
Harveys  case, the courts of Alaska  do  have
personal  jurisdiction over Warden  Luna  for
purposes of Harveys habeas corpus litigation.
          The  leading case on this point  is
Braden  v.  30th  Judicial Circuit  Court  of
Kentucky,  410  U.S. 484, 93 S.Ct.  1123,  35
L.Ed.2d   443  (1973).   Braden  involved   a
defendant  who was serving a sentence  in  an
Alabama  prison  when the State  of  Kentucky
filed  a  detainer against him  that  is,  an
order  directing the officials of Alabama  to
detain Braden when his sentence was completed
so   that   Kentucky  might  then   undertake
criminal  proceedings  against  him.   Braden
wished  to challenge his Kentucky indictment,
so  he  filed a petition for writ  of  habeas
corpus in the federal district court for  the
Western  District of Kentucky.1  The district
court  granted relief, but the Sixth  Circuit
reversed    concluding  that   the   Kentucky
district   court   had  no  jurisdiction   to
proceed,  and  that  the  proper  venue   for
Bradens   habeas   corpus   litigation    was
Alabama.2  Braden then pursued the matter  to
the United States Supreme Court.
          The   Supreme  Court   noted   that
Bradens underlying claim was an attack on the
validity  of  the  Kentucky indictment  which
[forms  the  basis for] the  detainer  lodged
against  him by the officials of that State.3
The  Supreme Court further noted  that,  [i]n
terms  of  traditional venue  considerations,
...   Kentucky  is  almost  surely  the  most
desirable  forum  for  the  adjudication   of
[Bradens] claim.  It is in Kentucky ... where
all  of  the material events took place  [and
where] the records and witnesses pertinent to
[Bradens] claim are likely to be found.4
          The  Supreme  Court  then  declared
that,  to  resolve the jurisdictional  issue,
the  question was not whether Braden  himself
was  within the jurisdiction of the  Kentucky
federal  court,  but rather  whether  Bradens
custodian  the warden in Alabama  was  within
the Kentucky courts jurisdiction.5
          For  purposes of resolving  Harveys
present   claim  to  this  Court,  the   most
important  aspect of the Braden  decision  is
the   Supreme  Courts  statement   that   the
Kentucky  courts  jurisdiction  over  Bradens
custodian  did  not  hinge  on  whether  that
custodian  was located within the  geographic
jurisdiction of the Kentucky court.   Rather,
the  Supreme  Court  declared,  the  Kentucky
court  had jurisdiction over Bradens  Alabama
custodian so long as the custodian [could] be
reached by service of process.6
          The  Supreme  Court then  summarily
declared  that  the  respondent  [i.e.,   the
Alabama  warden] was properly served in  [the
          western] district [of Kentucky].7  In support
of  this proposition, the Court cited  Strait
v.  Laird,  406 U.S. 341, 92 S.Ct.  1693,  32
L.Ed.2d 141 (1972).
          In  Strait  v. Laird,  the  Supreme
Court  held  that,  for  purposes  of  habeas
corpus   litigation,  a  court  can  properly
exercise jurisdiction over a custodian who is
not  physically  present  within  the  courts
territorial  jurisdiction if  that  custodian
has   sufficient  contacts  with  the  courts
territorial  jurisdiction to be reachable  by
service of process.
          Strait  involved  an  Army  Reserve
officer  who sought discharge from the  Armed
Forces as a conscientious objector.  When his
request for discharge was denied, he filed  a
petition  for  writ of habeas corpus  in  his
home   state  of  California.   The   federal
circuit court of appeals was persuaded by the
Armys argument that the proper venue for  the
petition  was  in  Indiana   because  Straits
custodian (i.e., his commanding officer)  was
the   commander   of  the   Reserve   Officer
Components Personnel Center, located at  Fort
Benjamin Harrison in Indiana.
          The  Supreme  Court  rejected  this
view  of  the matter.  The Court  held  that,
even  though  Straits ultimate commander  was
located  in Indiana, this commanding  officer
was   affecting  Strait  through  agents   in
California,   and  thus  the  commander   was
reachable   by   service   of   process    in
California:

     Straits commanding officer is present in
California  through  [the  agency   of]   the
officers in the hierarchy of the command  who
processed  this  servicemans application  for
discharge.  To require him to go  to  Indiana
where  he  never has been or assigned  to  be
would    entail    needless    expense    and
inconvenience.  ...  The concepts of  custody
and custodian are sufficiently broad to allow
us  to  say  that the commanding  officer  in
Indiana,   operating  through   officers   in
California  in processing petitioners  claim,
is  in California for the limited purposes of
habeas corpus jurisdiction.

Strait, 406 U.S. at 345-46, 92 S.Ct. at 1695-
96.
          In    an    accompanying   footnote
(footnote 2), the Supreme Court declared that
it   was  well  settled  that  this  type  of
          presence  i.e., presence through agency  may
suffice [to establish] personal jurisdiction.
The   Court  then  explained  that,   because
Straits  commanding officer [was] present  in
California  through  his  contacts  in   that
State[,]  he [was] therefore within reach  of
the   [California]  federal  court  in  which
Strait filed his petition.  Id., 406 U.S.  at
346 n. 2, 92 S.Ct. at 1696 n. 2.
          Both   Braden  and  Strait  confirm
that, even though a court must normally  have
jurisdiction   over  a  prisoners   immediate
custodian in order for the court to entertain
the  prisoners  habeas corpus petition,  that
jurisdiction  need  not  be  based   on   the
custodians   physical  presence  within   the
courts  territorial  jurisdiction.   Instead,
the requisite jurisdiction can be established
by  service of process if, because of  agency
or  otherwise,  the custodian has  sufficient
contacts    with   the   courts   territorial
jurisdiction.
          In   Harveys  case,  his  immediate
custodian  (Warden Luna) holds him in  prison
as  the  agent  of the Alaska  Department  of
Corrections.    Harveys  case  is   therefore
analogous  to  the  situation  addressed   in
Braden  v.  30th  Judicial Circuit  Court  of
Kentucky.
          In    Braden,    the    petitioners
immediate  custodian was a prison  warden  in
Alabama, but the Supreme Court held that this
warden  became  the agent  of  the  State  of
Kentucky  after  Kentucky officials  filed  a
detainer against Braden  and that, because of
this agency, the Alabama warden was reachable
by service of process in the Western District
of Kentucky.
          The   same   rule   applies   here.
Because  Harveys immediate custodian,  Warden
Luna,  holds  him as an agent of  the  Alaska
Department of Corrections, Luna is  reachable
by service of process in the State of Alaska.
Thus,  even if Luna were the sole respondent,
the  courts of Alaska would have jurisdiction
to  hear  and  decide Harveys  habeas  corpus
claims.
          We  therefore  re-affirm  what  the
Alaska  Supreme Court said forty-seven  years
ago in Application of House, 352 P.2d at 135:
The  fact that an Alaska prisoner is confined
outside the territorial limits of Alaska does
not defeat the authority of Alaska courts  to
entertain   the   prisoners   habeas   corpus
litigation   if   the   prisoners   immediate
custodian   is   an  agent  of   the   Alaska
Department   of  Corrections,   with   Alaska
correctional  officials having the  authority
to order the prisoner returned to Alaska.
          Accordingly, Harveys Motion ...  to
Vacate  All  Judgments, Orders, and  Opinions
Issued  In  This  Matter   that  is,  Harveys
application  for  an  order  rescinding   all
previous  orders  entered in  his  case,  and
prohibiting   the  courts  of   Alaska   from
adjudicating any of the issues raised in  his
habeas corpus litigation  is DENIED.

_______________________________
     1   Braden, 410 U.S. at 485-86, 93 S.Ct. at 1125.

     2   Id., 410 U.S. at 486, 93 S.Ct. at 1125.

     3   Id., 410 U.S. at 486-87, 93 S.Ct. at 1125.

     4   Id., 410 U.S. at 493-94, 93 S.Ct. at 1129.

     5   Id., 410 U.S. at 494-95, 93 S.Ct. at 1129-1130.

     6   Id., 410 U.S. at 495, 93 S.Ct. at 1130.

     7   Id., 410 U.S. at 500, 93 S.Ct. at 1132.

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