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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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