
    Kenneth Howard HINKLE and William Glen Hinkle, Petitioners, v. Monroe LOVE, Sheriff of Pulaski County, Ark., Respondent.
    No. LR-69-C-241.
    United States District Court, E. D. Arkansas, W. D.
    Jan. 30, 1970.
    Kenneth Howard Hinkle and William Glen Hinkle, pro se, petitioners.
    Joe Purcell, Atty. Gen., and Mike Wilson, Asst. Atty. Gen., State of Arkansas, for respondent.
   MEMORANDUM AND ORDER

HENLEY, Chief Judge.

On or about December 10, 1969, petitioners, Kenneth Howard Hinkle and William Glen Hinkle, presumably brothers, who were then confined in the Texas State Penitentiary were extradited to Arkansas to stand trial in Pulaski County on a charge of robbery allegedly committed by them in 1967. In connection with the extradition the Governor of Arkansas executed an Executive Agreement to the effect that upon the termination of the proceedings against petitioners in Arkansas they would be returned to the State of Texas upon demand to recommence service of their Texas sentences. Petitioners are presently confined in the Pulaski County Jail in the custody of respondent Sheriff.

On December 28, 1969, petitioners commenced this habeas corpus proceeding in this Court alleging in substance that their extradition was illegal and, further, that to return them to Texas as contemplated upon the termination of the proceedings in Arkansas would constitute a violation of their federal constitutional rights. The cause is now before the Court on respondent’s motion to dismiss the petition.

The petition does not allege any exhaustion of State remedies, and the Court is faced at the outset with an interesting question as to whether 28 U.S. C.A. § 2254, is applicable to petitioners in the situation in which they find themselves.

Section 2254(b) provides in substance that a prisoner. confined in an institution “pursuant to the judgment of a State court” cannot secure relief by way of habeas corpus in a federal court unless and until he exhausts available State court remedies.

Petitioners were unquestionably confined in Texas under judgments and commitments of the courts of that State, but they are not at the moment confined in Arkansas by virtue of any final judgment of any Arkansas court. They are simply being held in jail without bond awaiting trial which the Court understands will be held during the approaching spring term of the Pulaski County Circuit Court. The authority for their confinement is a warrant for their arrest issued in 1967 and a criminal information filed in the Circuit Court by the Prosecuting Attorney of Pulaski County. It is the Court’s information that petitioners have been arraigned in Circuit Court; at the conclusion of the arraignment they were doubtless remanded to custody, and in that sense only are they being held pursuant to a “judgment” of an Arkansas court.

However, the view which the Court takes of the case renders it unnecessary to pursue the exhaustion question further, at least at this time.

To the extent that petitioners complain that they were illegally extradited to Arkansas their petition does not state a claim upon which relief can be granted. Assuming that they were extradited illegally or improperly, the fact remains that they are here, and that the State of Arkansas has jurisdiction to try them. This Court will not inquire into the manner whereby they were brought into the State. Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541; Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L. Ed. 421; Thompson v. Bannan, 6 Cir., 298 F.2d 611.

With respect to their contemplated return to Texas petitioners contend that when Texas released them to Arkansas for trial, the action amounted either to a constructive pardon or at least to a waiver by Texas of any right to recon-fine them in the Texas Penitentiary. They also allege that the Executive Agreement that has been mentioned was void as amounting to a treaty between Arkansas and Texas prohibited by Article I, Section 10 of the Constitution of the United States.

Assuming arguendo that those contentions rise to constitutional dignity or otherwise present a substantial federal question, the Court is of the opinion that it would be premature to consider them at this time.

At the moment no effort is being made to return petitioners to Texas. Between now and the completion of petitioners’ trial on the robbery charge they may die or escape from custody; it is also conceivable, albeit improbable, that Texas will not seek their return. Further, it is not clear by what means Texas will ask for their return; if the Governor of Texas proceeds by way of formal extradition, as did the Governor of Arkansas in the first instance, petitioners will be entitled under Arkansas law to notice and to an opportunity to contest the extradition by means of a petition for a writ of habeas corpus in the State courts. Ark.Stats.Ann. § 43-3010.

In the circumstances the petition will be, and it hereby is, dismissed without prejudice to the right of petitioners to litigate in an appropriate forum after the trial in the Circuit Court the question of the legality of their return to Texas if such a return is sought.  