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GREENE v. PRUNTY

May 16, 1996

HERBERT GREENE, Plaintiff,
v.
K.W. PRUNTY, et al., Defendants.



The opinion of the court was delivered by: MOSKOWITZ

 INTRODUCTION

 Plaintiff, Herbert Greene, has brought a civil rights action pursuant to 42 U.S.C. § 1983 against Officer Konkel of the Calipatria State Prison. Plaintiff Greene, an inmate at Calipatria, has moved the Court for an order, pursuant to 28 U.S.C. §§ 1651(a) and 2241(c)(5), granting his request for writs of habeas corpus ad testificandum directing the production of inmate-witnesses at trial, two of which are incarcerated outside of this district. The defendant opposes this motion.

 DISCUSSION

 28 U.S.C. § 2241(c)(5), in conjunction with 28 U.S.C. § 1651(a), *fn1" permits a federal court, when necessary, to issue a writ of habeas corpus ad testificandum. The purpose of this writ is to direct the custodian of a prisoner to produce the prisoner for appearance as a witness in court. The decision to issue a writ of habeas corpus ad testificandum is committed to the discretion of the district court. See Atkins v. City of New York, 856 F. Supp. 755, 757 (E.D.N.Y.1994).

 A. Jurisdictional Concerns

 The power of the district courts to issue writs of habeas corpus ad testificandum stems from 28 U.S.C. § 2241. The defendant, relying on § 2241, subd. (a), argues that the writ of habeas corpus may be granted only within the district court's respective jurisdiction.

 In Carbo v. United States, 364 U.S. 611, 5 L. Ed. 2d 329, 81 S. Ct. 338 (1961), the United States Supreme Court held that the language in 28 U.S.C. § 2241(a) limiting the issuance of writs of habeas corpus by judges within their respective jurisdictions applies only to writs of habeas corpus ad subjiciendum (those testing the legality of imprisonment) and not ad prosequendum (those ordering the production of a prisoner for prosecution). Thus, the Supreme Court held that a district judge in the Southern District of California had jurisdiction to issue a writ of habeas corpus ad prosequendum to a New York City prison to produce a prisoner for trial in federal court in California. The Court, however, expressly noted that it was not deciding whether the writ of habeas corpus ad testificandum was subject to the jurisdictional limitation of 28 U.S.C. § 2241(a). Carbo, 364 U.S. at 618, n.13.

 Courts that have considered the territorial reach of writs of habeas corpus ad testificandum after Carbo have concluded that such writs can be issued to produce a person incarcerated outside of the district to testify. The prevailing view of the appellate courts favors the extraterritorial application of a writ of habeas corpus ad testificandum in appropriate circumstances. See Muhammad v. Warden, Baltimore City Jail, 849 F.2d 107, 114 (4th Cir.1988); Itel Capital, Corp. v. Dennis Mining Supply and Equip., Inc., 651 F.2d 405, 407 (5th Cir.1981); Stone v. Morris, 546 F.2d 730, 737 (7th Cir.1976); see also Maurer v. Pitchess, 530 F. Supp. 77 (C.D.Cal.1981), aff'd in part, rev'd in part, 755 F.2d 936 (9th Cir.1985). These courts have found that the Supreme Courts' reasoning as to the basis for the extraterritorial application of a writ of habeas corpus ad prosequendum applies equally to writs ad testificandum. Atkins, 856 F. Supp. at 759; see Muhammad, 849 F.2d at 114 (quoting, Maurer v. Pitchess, 530 F. Supp. at 79); Itel, 651 F.2d at 407; Stone, 546 F.2d at 737.

 The Court finds the reasoning of the Fourth, Fifth and Seventh Circuits and the district court for the Central District of California to be persuasive. The Court further finds support for extraterritorial application of a writ of habeas corpus ad testificandum when it is ancillary to an action for which subject matter jurisdiction is founded upon 42 U.S.C. § 1983. See Atkins, 856 F. Supp. at 759. In sum, the Court has jurisdiction to issue a writ of habeas corpus ad testificandum outside of its respective jurisdiction.

 B. Necessity of Inmate Testimony

 In order to grant the writ of habeas corpus ad testificandum the Court must determine not only whether an inmate-witness' testimony is relevant, but also, whether such testimony is necessary. This determination depends ultimately upon whether the probative value of the testimony justifies the expense and security risk associated with transporting an inmate-witness to court from a correctional facility. Atkins, 856 F. Supp. at 758; see Muhammad, 849 F.2d at 112; Cookish v. Cunningham, 787 F.2d 1, 5 (1st Cir.1986).

 The standard for issuance of the writ is also similar to that employed pursuant to Fed.R.Crim.P. 17(b). "Courts have generally required criminal defendants requesting such writs [of habeas corpus ad testificandum] to comply with Fed.R.Crim.Proc. 17(b), which looks for 'a satisfactory showing . . . that the presence of the witness is necessary to an adequate defense.'" United States v. Smith, 924 F.2d 889, 896 (9th Cir.1991) (quoting, United States v. Rinchack, 820 F.2d 1557, 1567 (11th Cir.1987)). The Ninth Circuit has adopted the following standard on necessity:

 
If the accused avers facts which, if true, would be relevant to any issue in the case, the requests for subpoenas must be granted, unless the averments are inherently incredible on their face, or unless the Government shows, either by introducing evidence or from matters already of record, ...

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