Appeal from a judgment of the United States District Court for the Southern District of New York (Hon. Whitman Knapp, Judge), dismissing a federal defendant's habeas corpus challenge on medical grounds to the execution of a removal warrant. Reversed and remanded.
Before Van Graafeiland, Newman and Kearse, Circuit Judges.
This appeal from the denial of a petition for a writ of habeas corpus concerns the choice of forum for litigating the issue of whether execution of a removal warrant should be stayed because of the defendant's health.
Thomas Roba, the petitioner-defendant, was indicted on federal charges in the Central District of California on November 14, 1978. On December 21, 1978, he was arrested in the Southern District of New York on a bench warrant issued by the California Court. Roba's presentment before a United States Magistrate that day was interrupted when his medical condition required that he be taken to a hospital for emergency treatment. Soon thereafter, his physician diagnosed an acute form of heart failure, pulmonary edema, caused by a combination of the blockage of coronary arteries and exposure to stress. The doctor subsequently recommended that cardiac by-pass surgery be performed in the near future and warned that if any stress is placed upon Roba, there is a substantial likelihood that he will suffer another heart failure or heart attack, either of which could very likely be fatal.
After unsuccessful efforts to negotiate waiver of a removal hearing, the Government sought the issuance of a removal warrant pursuant to Fed.R.Crim.P. 40 at a resumed hearing. The Government presented a certified copy of the California indictment and relied, for proof of identity, on Roba's own motion papers. Roba sought to have the removal hearing continued because of his ill health. The Government countered with the suggestion that the removal warrant should be issued and that execution of the warrant should be stayed for sufficient time to permit the California Court to rule on Roba's fitness to stand trial. In the Government's view, resolution of that issue would moot the question of Roba's competency to withstand the journey to California. The Magistrate agreed with the Government's position and recommended it to Judge Kevin Thomas Duffy.
Judge Duffy agreed with the Magistrate and rejected defendant's request to have his physical competency to be removed determined in the Southern District of New York. Judge Duffy's endorsement of the Magistrate's recommendation stated, "I see no reason, however, why this determination should not be made by a Court in the jurisdiction where the indictment was filed and where the allegedly criminal acts transpired." United States v. Roba, Docket No. M-19-1-5073 (S.D.N.Y. Feb. 20, 1979). He ordered that the removal warrant issue but stayed its execution for two weeks "or such longer period as the Central District of California may direct." Judge Duffy subsequently stayed execution of the warrant until March 15, 1979, when he signed a removal warrant. The warrant states: "The execution of this warrant will issue immediately pursuant to this Court's Order of February 20, 1979, which stayed execution for two weeks. However, execution will be stayed for such longer period as the Central District of California may direct."
Roba then sought to appeal the issuance of the removal warrant or alternatively to obtain a writ of mandamus. This Court dismissed the appeal, United States v. Roba, No. 79-8158 (2d Cir. Mar. 20, 1979), and denied the petition for writ of mandamus "without prejudice." In re Roba, No. 79-3120 (2d Cir. Mar. 20, 1979).
Pursuing an inquiry from the bench during argument of the appeal as to whether a habeas corpus proceeding could be brought, Roba petitioned for a writ of habeas corpus in the Southern District on March 29, 1979. Judge Whitman Knapp, after hearing argument of counsel but no evidence, dismissed the petition, finding no constitutional defect in Judge Duffy's order. This appeal is from that dismissal.*fn1
At the outset the Government challenges the jurisdiction of this Court, contending that 28 U.S.C. § 2253 precludes this appeal. That section provides:
In a habeas corpus proceeding before a circuit or district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit where the proceeding is had.
There shall be no right of appeal from such an order in a proceeding to test the validity of a warrant to remove, to another district or place for commitment or trial, a person charged with a criminal offense against the United States, or to test the validity of his detention pending removal proceedings.
We agree with appellant that § 2253 does not bar appellate jurisdiction because the proceeding before Judge Knapp was not a proceeding "to test the validity of a warrant to remove," but was an attack upon the lawfulness of the execution of the warrant in view of petitioner's medical condition. Congress enacted the prohibition against appeals in habeas corpus proceedings testing the validity of removal warrants out of an understandable concern with obstructive delays. See United States ex rel. Angelica v. Hammond, 99 F.2d 557 (5th Cir. 1938); United States v. Provoo, 16 F.R.D. 341 (S.D.N.Y.1954). The legislative history indicates, however, that the preclusion of appeals is properly to be limited to proceedings to test the "validity" of a removal warrant, and not extended, as the Government contends, to appeals from a proceeding challenging any aspect of removal. When the bill that became the second sentence of § 2253, H.R. 6178, 75th Cong., 1st Sess. (1937), was recommended to Congress, the Department of Justice urged its enactment with the assurance that "if any error is made in (the defendant's) removal it can be corrected on appeal from the final judgment of conviction." A. Holtzoff, Memorandum for the Attorney General re bill to abolish appeals in removal proceedings, reprinted in H.Rep.No. 1543, 75th Cong., 1st Sess. 2, 3 (1937). The manifest purpose of Congress was to prevent appellate consideration, in the circuit of the habeas court, of issues affecting the validity of the warrant, particularly probable cause and identity, the only issues available for litigation when a district court is asked to issue a removal warrant. Fed.R.Crim.P. 40(b)(3); see United States v. Woodring, 446 F.2d 733 (10th Cir. 1971); United States v. Provoo, supra. Plainly the issue petitioner sought to litigate in the District Court whether execution of the warrant should be stayed because of a life-threatening medical condition would not be available for consideration upon appeal from a conviction. Of course, the petitioner could not defeat the Congressional objective by disguising an attack on probable cause or identity in the garb of a habeas corpus challenge to the execution of a warrant. But conversely, the Government cannot defeat appellate review of a challenge on medical grounds to the execution of a removal warrant by claiming it is in reality a precluded attack on the validity of the warrant.
On the merits, the Government does not appear to deny that petitioner has a right to resist execution of the removal warrant on medical grounds.*fn2 The issue is whether the alleged violation of that right is to be litigated in the district of prosecution or the district that issues the removal warrant. Both Judge Duffy, in declining to stay the warrant pending his determination of the health claim, and Judge Knapp, in dismissing the habeas corpus petition without adjudication of its merits, concluded that there was no reason why the medical claim of physical inability to be removed could not be fairly litigated in the district of prosecution. Petitioner challenges this conclusion, suggesting there is a Catch-22 aspect in requiring a defendant in New York to litigate in California the issue of whether his health prevents him from being brought to California for trial.*fn3
In our view, the issue is not whether the claim could be litigated fairly in California; it is whether the habeas corpus court in the Southern District is obliged to adjudicate ...