text:
BRADEN v. 30TH JUDICIAL CIRCUIT COURT OF KY.
1. Under Peyton v. Rowe, 391 U.S. 54 , which discarded the "prematurity doctrine" of McNally v. Hill, 293 U.S. 131 , the petitioner was "in custody" within the meaning of 28 U.S.C. 2241 (c) (3) for purposes of a habeas corpus attack on the Kentucky indictment underlying the detainer, even though he was confined in an Alabama prison. Pp. 488-489.
2. The exhaustion doctrine of Ex parte Royall, 117 U.S. 241 , does not bar a petition for federal habeas corpus alleging, under Smith v. Hooey, 393 U.S. 374 , a constitutional claim of present denial of a speedy trial, even though the petitioner has not yet been brought to trial on the state charge. The petitioner must, however, have exhausted available state court remedies for consideration of that constitutional claim. Pp. 489-493.
3. The jurisdiction of a district court considering a habeas corpus petition requires only that the court issuing the writ have jurisdiction over the custodian of the prisoner. Pp. 494-495.
4. Ahrens v. Clark, 335 U.S. 188 , on which respondent relies, can no longer be viewed as requiring that habeas corpus petitions be brought only in the district of the petitioner's confinement. Here, since respondent was properly served with process in the Western District of Kentucky, the Court of Appeals erred in concluding [410 U.S. 484, 485] that the District Court should have dismissed the petition for lack of jurisdiction. Pp. 495-501.
454 F.2d 145, reversed and remanded.
BRENNAN, J., delivered the opinion of the Court, in which DOUGLAS, STEWART, WHITE, and MARSHALL, JJ., joined. BLACKMUN, J., filed an opinion concurring in the result, post, p. 501. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C. J., and POWELL, J., joined, post, p. 502.
David R. Hood argued the cause and filed a brief for petitioner.
[ Footnote * ] Melvin L. Wulf, Sanford Jay Rosen, and Joel M. Gora filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.
Petitioner is presently serving a sentence in an Alabama prison. He applied to the District Court for the Western District of Kentucky for a writ of federal habeas corpus, alleging denial of his constitutional right to a speedy trial, Smith v. Hooey, 393 U.S. 374 (1969), and praying that an order issue directing respondent to afford him an immediate trial on a then three-year-old Kentucky indictment. We are to consider whether, as petitioner was not physically present within the territorial limits of the District Court for the Western District of Kentucky, the provision of 28 U.S.C. 2241 (a) that "[w]rits of habeas corpus may be granted by the . . . district courts . . . within their respective jurisdictions" (emphasis supplied), precluded the District Court from [410 U.S. 484, 486] entertaining petitioner's application. The District Court held that the section did not bar its determination of the application. The court held further that petitioner had been denied a speedy trial and ordered respondent either to secure his presence in Kentucky for trial within 60 days or to dismiss the indictment. The Court of Appeals for the Sixth Circuit reversed on the ground that "the habeas corpus jurisdiction conferred on the federal courts by 28 U.S.C. 2241 (a) is `limited to petitions filed by persons physically present within the territorial limits of the District Court.'" 454 F.2d 145, 146 (1972). We granted certiorari. 407 U.S. 909 (1972). We reverse.
On July 31, 1967, the grand jury of the Jefferson County Circuit Court (30th Judicial Circuit of Kentucky) indicted petitioner on one count of storehouse breaking and one count of safebreaking. At the time of the indictment, petitioner was in custody in California, and he was returned to Kentucky to stand trial on the indictment. But on November 13, 1967, he escaped from the custody of Kentucky officials and remained at large until his arrest in Alabama on February 24, 1968. Petitioner was convicted of certain unspecified felonies in the Alabama state courts, and was sentenced to the Alabama state prison, where he was confined when he filed this action.
The validity of petitioner's conviction on the Alabama felonies is not at issue here, just as it was not at issue before the District Court for the Western District of Kentucky. Nor does petitioner challenge the "present effect being given the [Kentucky] detainer by the [Alabama] authorities . . . ." Nelson v. George, 399 U.S. 224, 225 (1970). He attacks, rather, the validity of the [410 U.S. 484, 487] Kentucky indictment which underlies the detainer lodged against him by officials of that State.
In a pro se application for habeas corpus relief to the Federal District Court in the Western District of Kentucky, petitioner alleged that he had made repeated demands for a speedy trial on the Kentucky indictment, that he had been denied his right to a speedy trial, that further delay in trial would impair his ability to defend himself, and that the existence of the Kentucky indictment adversely affected his condition of confinement in Alabama by prejudicing his opportunity for parole. In response to an order to show cause, respondent argued that the District Court lacked jurisdiction because the petitioner was not confined within the district. Respondent added that "petitioner in the case at bar may challenge the legality of any of the adverse effects of any Kentucky detainer against him in Alabama by habeas corpus in the Alabama Federal District Court." App. 6-7. The District Court held, citing Smith v. Hooey, 393 U.S. 374 (1969), that Kentucky must "attempt to effect the return of a prisoner from a foreign jurisdiction for trial on pending state charges when such prisoner so demands . . . . Since it is the State of Kentucky which must take action, it follows that jurisdiction rests in this district which has jurisdiction over the necessary state officials." App. 9.
Under the constraint of its earlier decision, 1 the Court of Appeals reversed but stated that it "reach[ed] this conclusion reluctantly" because of the possibility that the decision would "result in Braden's inability to find a forum in which to assert his constitutional right to a speedy trial - a right which he is legally entitled to assert at this time under Peyton v. Rowe, 391 U.S. 54 [410 U.S. 484, 488] (1968). This is a possibility because the rule in the Fifth Circuit, where [Braden] is incarcerated, appears to be that a district court in the state that has filed the detainer is the proper forum in which to file the petition. See May v. Georgia, 409 F.2d 203 (5th Cir. 1969). See also Rodgers v. Louisiana, 418 F.2d 237 (5th Cir. 1969). Braden thus may find himself ensnared in what has aptly been termed `Catch 2254' - unable to vindicate his constitutional rights in either of the only two states that could possibly afford a remedy. See Tuttle, Catch 2254: Federal Jurisdiction and Interstate Detainers, 32 U. Pitt. L. Rev. 489, 502-03 (1971)." 454 F.2d, at 146-147.
Second, petitioner has exhausted all available state remedies as a prelude to this action. It is true, of course, that he has not yet been tried on the Kentucky indictment, and he can assert a speedy trial defense when, and if, he is finally brought to trial. It is also true, as our Brother REHNQUIST points out in dissent, that federal habeas corpus does not lie, absent "special circumstances," to adjudicate the merits of an affirmative defense to a state criminal charge prior to a judgment of conviction by a state court. Ex parte Royall, 117 U.S. 241, 253 (1886). Petitioner does not, however, seek at this time to litigate a federal defense to a criminal charge, but only [410 U.S. 484, 490] to demand enforcement of the Commonwealth's affirmative constitutional obligation to bring him promptly to trial. Smith v. Hooey, 393 U.S. 374 (1969). He has made repeated demands for trial to the courts of Kentucky, offering those courts an opportunity to consider on the merits his constitutional claim of the present denial of a speedy trial. Under these circumstances it is clear that he has exhausted all available state court remedies for consideration of that constitutional claim, even though Kentucky has not yet brought him to trial.
"Preserves the role of the state courts in the application and enforcement of federal law. Early federal intervention in state criminal proceedings would tend to remove federal questions from the state courts, isolate those courts from constitutional issues, and thereby remove their understanding of and hospitality to federally protected interests. Second, [the doctrine] preserves orderly administration of state judicial business, preventing the interruption of state adjudication by federal habeas proceedings. It is important that petitioners reach state appellate courts, which can develop and correct errors of state and federal law and most effectively supervise and [410 U.S. 484, 491] impose uniformity on trial courts." Note, Developments in the Law - Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1094 (1970).
See Darr v. Burford, 339 U.S. 200, 204 -206 (1950), and the case which overruled it, Fay v. Noia, 372 U.S. 391, 417 -420 (1963). See also Ex parte Royall, supra, at 251-252; Ex parte Hawk, 321 U.S. 114 (1944); cf. Younger v. Harris, 401 U.S. 37 (1971); Stefanelli v. Minard, 342 U.S. 117 (1951).
The fundamental interests underlying the exhaustion doctrine have been fully satisfied in petitioner's situation. He has already presented his federal constitutional claim of a present denial of a speedy trial to the courts of Kentucky. The state courts rejected the claim, apparently on the ground that since he had once escaped from custody the Commonwealth should not be obligated to incur the risk of another escape by returning him for trial. Petitioner exhausted all available state court opportunities to establish his position that the prior escape did not obviate the Commonwealth's duty under Smith v. Hooey, supra. Moreover, petitioner made no effort to abort a state proceeding or to disrupt the orderly functioning of state judicial processes. He comes to federal court, not in an effort to forestall a state prosecution, but to enforce the Commonwealth's obligation to provide him with a state court forum. He delayed his application for federal relief until the state courts had conclusively determined that his prosecution was temporarily moribund. Since petitioner began serving the second of two 10-year Alabama sentences in March 1972, the revival of the prosecution may be delayed until as late as 1982. A federal habeas corpus action at this time and under these circumstances [410 U.S. 484, 492] does not jeopardize any legitimate interest of federalism. 5 Respondent apparently shares that view since it specifically concedes that petitioner has exhausted all available state remedies, Tr. of Oral Arg. 41.
We emphasize that nothing we have said would permit the derailment of a pending state proceeding by an attempt to litigate constitutional defenses prematurely in federal court. The contention in dissent that our decision converts federal habeas corpus into "a pretrial-motion forum for state prisoners," wholly misapprehends today's holding.
Accordingly, we turn to the determination of the forum in which the petition for habeas corpus should be brought. In terms of traditional venue considerations, the District Court for the Western District of Kentucky is almost surely the most desirable forum for the adjudication of the claim. 7 It is in Kentucky, where all of the material events took place, that the records and witnesses pertinent [410 U.S. 484, 494] to petitioner's claim are likely to be found. And that forum is presumably no less convenient for the respondent and the Commonwealth of Kentucky, than for the petitioner. The expense and risk of transporting the petitioner to the Western District of Kentucky, should his presence at a hearing prove necessary, would in all likelihood be outweighed by the difficulties of transporting records and witnesses from Kentucky to the district where petitioner is confined. 8 Indeed, respondent makes clear that "on balance, it would appear simpler and less expensive for the State of Kentucky to litigate such questions [as those involved in this case] in one of its own Federal judicial districts." Brief for Respondent 6.
But respondent insists that however the balance of convenience might be struck with reference to the question of venue, the choice of forum is rigidly and jurisdictionally controlled by the provision of 2241 (a) that "[w]rits of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions." 28 U.S.C. 2241 (a) (emphasis supplied). Relying on our decision in Ahrens v. Clark, 335 U.S. 188 (1948), respondent contends - and the Court of Appeals held - that the italicized words limit a District Court's habeas corpus jurisdiction to cases where the prisoner seeking relief is confined within its territorial jurisdiction. Since that interpretation is not compelled either by the language of the statute or by the decision in Ahrens, and since it is fundamentally at odds with the purposes of the statutory scheme, we cannot agree.
"The important fact to be observed in regard to the mode of procedure upon this writ is, that it is directed to, and served upon, not the person confined, but his jailer. It does not reach the former except through the latter. The officer or person who serves it does not unbar the prison doors, and set the prisoner free, but the court relieves him by compelling the oppressor to release his constraint. The whole force of the writ is spent upon the respondent." In the Matter of Jackson, 15 Mich. 417, 439-440 (1867), quoted with approval in Ex parte Endo, 323 U.S. 283, 306 (1944).
See also Ahrens v. Clark, 335 U.S., at 196 -197 (Rutledge, J., dissenting).
Read literally, the language of 2241 (a) requires nothing more than the court issuing the writ have jurisdiction over the custodian. So long as the custodian can be reached by service of process, the court can issue a writ "within its jurisdiction" requiring that the prisoner be brought before the court for a hearing on his claim, or requiring that he be released outright from custody, even if the prisoner himself is confined outside the court's territorial jurisdiction.
Nevertheless, there is language in our opinion in Ahrens v. Clark, supra, indicating that the prisoner's presence within the territorial confines of the district is an invariable prerequisite to the exercise of the District Court's habeas corpus jurisdiction. In Ahrens, 120 German nationals confined at Ellis Island, New York, pending deportation sought habeas corpus on the principal ground that the removal orders exceeded the President's statutory authority under the Alien Enemy Act of 1798. [410 U.S. 484, 496] They filed their petitions in the District Court for the District of Columbia, naming as respondent the Attorney General of the United States. Construing the statutory predecessor to 2241 (a), we held that the phrase, "within their respective jurisdictions," precluded the District Court for the District of Columbia from inquiring into the validity of the prisoners' detention at Ellis Island, and we therefore affirmed the dismissal of the petitions on jurisdictional grounds.
This Court, too, has undercut some of the premises of the Ahrens decision. Where American citizens confined overseas (and thus outside the territory of any district court) have sought relief in habeas corpus, we have held, if only implicitly, that the petitioners' absence from the district does not present a jurisdictional obstacle to the consideration of the claim. Burns v. Wilson, 346 U.S. 137 (1953), rehearing denied, 346 U.S. 844, 851 -852 (opinion of Frankfurter, J.); cf. Toth v. Quarles, 350 U.S. 11 (1955); Hirota v. MacArthur, 338 U.S. 197, 199 (1948) (DOUGLAS, J., concurring (1949)).
A further, critical development since our decision in Ahrens is the emergence of new classes of prisoners who are able to petition for habeas corpus because of the adoption of a more expansive definition of the "custody" requirement of the habeas statute. See Peyton v. Rowe, 391 U.S. 54 (1968); Carafas v. LaVallee, 391 U.S. 234 (1968); Jones v. Cunningham 371 U.S. 236 (1963). The overruling of McNally v. Hill, 293 U.S. 131 (1934), made it possible for prisoners in custody under one sentence to attack a sentence which they had not yet begun to serve. And it also enabled a petitioner held in one State to attack a detainer lodged against him by another State. In such a case, the State holding the prisoner in immediate confinement acts as agent for the demanding [410 U.S. 484, 499] State, 15 and the custodian State is presumably indifferent to the resolution of prisoner's attack on the detainer. Here, for example, the petitioner is confined in Alabama, but his dispute is with the Commonwealth of Kentucky, not the State of Alabama. Under these circumstances it would serve no useful purpose to apply the Ahrens rule and require that the action be brought in Alabama. In fact, a slavish application of the rule would jar with the very purpose underlying the addition of the phrase, "within their respective jurisdictions." We cannot assume that Congress intended to require the Commonwealth of Kentucky to defend its action in a distant State and to preclude the resolution of the dispute by a federal judge familiar with the laws and practices of Kentucky. 16 See United States ex rel. Meadows v. New York, 426 F.2d 1176, 1181 (CA2 1970); Word v. North Carolina, 406 F.2d 352 (CA4 1969).
In view of these developments since Ahrens v. Clark, we can no longer view that decision as establishing an [410 U.S. 484, 500] inflexible jurisdictional rule, dictating the choice of an inconvenient forum even in a class of cases which could not have been foreseen at the time of our decision. 17 Of course, in many instances the district in which petitioners are held will be the most convenient forum for the litigation of their claims. On the facts of Ahrens itself, for example, petitioners could have challenged their detention by bringing an action in the Eastern District of New York against the federal officials who confined them in that district. No reason is apparent why the District of Columbia would have been a more convenient forum, or why the Government should have undertaken the burden of transporting 120 detainees to a hearing in the District of Columbia. Under these circumstances, traditional principles of venue would have mandated the bringing of the action in the Eastern District of New York, rather than the District of Columbia. Ahrens v. Clark stands for no broader proposition.
Since the petitioner's absence from the Western District of Kentucky did not deprive the court of jurisdiction, and since the respondent was properly served in that district, see Strait v. Laird, 406 U.S. 341 (1972); Schlanger v. Seamans, 401 U.S. 487 (1971), the court below erred in ordering the dismissal of the petition on jurisdictional grounds. The judgment of the Court of [410 U.S. 484, 501] Appeals is reversed and the case is remanded for proceedings consistent with this opinion.
[ Footnote 1 ] White v. Tennessee, 447 F.2d 1354 (CA6 1971).
[ Footnote 2 ] Compare United States ex rel. Meadows v. New York, 426 F.2d 1176 (CA2 1970), and Word v. North Carolina, 406 F.2d 352 (CA4 1969) (proper forum is in the demanding State), with United States ex rel. Van Scoten v. Pennsylvania, 404 F.2d 767 (CA3 1968), Ashley v. Washington, 394 F.2d 125 (CA9 1968), and Booker v. Arkansas, 380 F.2d 240 (CA8 1967) (proper forum is in the State of confinement).
[ Footnote 3 ] See generally Note, Developments in the Law - Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1087-1093 (1970).
[ Footnote 4 ] In Smith v. Hooey, 393 U.S. 374 (1969), we considered a speedy trial claim similar to the one presented in the case before us, and we held that a State which had lodged a detainer against a petitioner in another State must, on the prisoner's demand, "make a diligent, good-faith effort" to bring the prisoner to trial. Id., at 383. But that case arose on direct review of the denial of relief by the state court, and we had no occasion to consider whether the same or similar claims could have been raised on federal habeas corpus. Yet it logically follows from Peyton v. Rowe, 391 U.S. 54 (1968), that the claims can be raised on collateral attack. In this context, as opposed to the situation presented in Peyton, the "future custody" under attack will not be imposed by the same sovereign which holds the petitioner in his current confinement. Nevertheless, the considerations which were held in Peyton to warrant a prompt resolution of the claim also apply with full force in this context. 391 U.S., at 63 -64. See United States ex rel. Meadows v. New York, supra, at 1179. Word v. North Carolina, supra, at 353-355. Since the Alabama warden acts here as the agent of the Commonwealth of Kentucky in holding the petitioner pursuant to the Kentucky detainer, we have no difficulty concluding that petitioner is "in custody" for purposes of 28 U.S.C. 2241 (c) (3). On the facts of this case, we need not decide whether, if no detainer had been issued against him, petitioner would be sufficiently "in custody" to attack the Kentucky indictment by an action in habeas corpus.
"It is also said that since the trial of Hathaway and the granting of a new trial to him the case of the petitioner [Grice] has not been called for trial, and that two terms of court since the granting of a new trial to Hathaway had come and the second one was about expiring at the time when the petitioner filed his petition in the Circuit Court for this writ. Here, again, there is no allegation and no proof that any attempt had been made on the part of this petitioner to obtain a trial in the state court or that he had been refused such trial by that court upon any application which he made. It is the simple case of a failure to call the indictment for trial, the petitioner being in the meantime on bail and making no effort to obtain a trial and evincing no desire by way of a demand that a trial in his case should be had.
"We do not say that a refusal to try a person who is on bail can furnish any foundation for a resort to the Federal courts, even in cases in which a trial may involve Federal questions, but in this case no refusal is shown. A mere omission to move the case for trial (the party being on bail) is all that is set up, coupled with the assertion that defendant was eager and anxious for trial, but showing no action whatever on his part which might render such anxiety and eagerness known to the state authorities." Id., at 292-293.
Cf. Young v. Ragen, 337 U.S. 235, 238 -239 (1949); Marino v. Ragen, 332 U.S. 561, 563 -570 (1947) (Rutledge, J., concurring).
[ Footnote 6 ] See Chauncey v. Second Judicial District Court, 453 F.2d 389, 390 n. 1 (CA9 1971); Beck v. United States, 442 F.2d 1037 (CA5 1971); Kane v. Virginia, 419 F.2d 1369 (CA4 1970); May v. Georgia, 409 F.2d 203 (CA5 1969); White v. Coleman, 341 F. Supp. 272, 274 (WD Ky. 1971) (dictum); United States ex rel. Pitts v. Rundle, 325 F. Supp. 480 (ED Pa. 1971) (dictum); Williams v. Pennsylvania, 315 F. Supp. 1261 (WD Mo. 1970) (dictum); Varallo v. Ohio, 312 F. Supp. 45 (ED Tex. 1970) (dictum); Campbell v. Smith, 308 F. Supp. 796 (SD Ga. 1970); Piper v. United States, 306 F. Supp. 1259 (Conn. 1969) (dictum); United States ex rel. White v. Hocker, 306 F. Supp. 485 (Nev. 1969). But see Lawrence v. Blackwell, 298 F. Supp. 708 (ND Ga. 1969); Carnage v. Sanborn, 304 F. Supp. 857 (ND Ga. 1969); Kirk v. Oklahoma, 300 F. Supp. 453 (WD Okla. 1969) (alternative holding).
[ Footnote 7 ] See United States v. Hayman, 342 U.S. 205 (1952), discussing the legislative history of 28 U.S.C. 2255; S. Rep. No. 1502, 89th Cong., 2d Sess., 2 (1966), discussing 28 U.S.C. 2241 (d); Uniform Post-Conviction Procedure Act 3; American Bar Association Project on Standards for Criminal Justice, Post-Conviction Remedies 1.4, [410 U.S. 484, 494] p. 28 (approved draft 1968); Note, Developments in the Law - Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1161 (1970).
[ Footnote 8 ] S. Rep. No. 1526, 80th Cong., 2d Sess., 3 (1948).
[ Footnote 9 ] But see Fairman, Some New Problems of the Constitution Following the Flag, 1 Stan. L. Rev. 587, 633-640 (1949).
[ Footnote 10 ] Act of Feb. 5, 1867, 14 Stat. 385.
"That the several courts of the United States, and the several justices and judges of such courts, within their respective jurisdictions [410 U.S. 484, 497] . . . shall have power to grant writs of habeas corpus . . . ." 14 Stat. 385.
[ Footnote 12 ] The amendment was adopted in 1966.
[ Footnote 13 ] See H. R. Rep. No. 1894, 89th Cong., 2d Sess. (1966); S. Rep. No. 1502, 89th Cong., 2d Sess. (1966) (legislative history of amendments to 28 U.S.C. 2241 (d)); United States v. Hayman, 342 U.S. 205 (1952) (discussing legislative history of 28 U.S.C. 2255). Of course, these amendments were not motivated solely by a desire to insure that the disputes could be resolved in the most convenient forum. It was also a critical part of the congressional purpose to avoid the vastly disproportionate burden of handling habeas corpus petitions which had fallen, prior to the amendments, on those districts in which large numbers of prisoners are confined.
[ Footnote 14 ] See Note, Developments in the Law - Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1189-1191 (1970).
[ Footnote 15 ] Nothing in this opinion should be taken to preclude the exercise of concurrent habeas corpus jurisdiction over the petitioner's claim by a federal district court in the district of confinement. But as we have made clear above, that forum will not in the ordinary case prove as convenient as the district court in the State which has lodged the detainer. Where a prisoner brings an action in the district of confinement attacking a detainer lodged by another State, the court can, of course, transfer the suit to a more convenient forum. 28 U.S.C. 1404 (a). Hoffman v. Blaski, 363 U.S. 335 (1960).
[ Footnote 16 ] Obviously, since petitioner could not have presented his habeas corpus claim prior to our 1968 decision in Peyton v. Rowe, supra, and since the choice-of-forum provisions in the habeas corpus statute were most recently amended in 1966, see n. 13, supra, we can hardly draw any inference from the fact that the amendment did not specifically overrule Ahrens with respect to the type of case now before us.
[ Footnote 17 ] In Nelson v. George, 399 U.S. 224, 228 n. 5 (1970), we adverted to, but reserved judgment on, the precise question at issue here. We did point out, however, that the "obvious, logical, and practical solution is an amendment to 2241 to remedy the shortcoming that has become apparent following the holding in Peyton v. Rowe. Sound judicial administration calls for such an amendment." We note that an amendment to 2241 drafted by the Administrative Conference of the United States Courts was introduced during the 92d Congress, but no action was taken upon it.
I concur in the result. The conclusion the Court reaches is not unexpected when one notes the extraordinary expansion of the concept of habeas corpus effected in recent years. See Ex parte Hull, 312 U.S. 546 (1941); Ex parte Endo, 323 U.S. 283 (1944); Jones v. Cunningham, 371 U.S. 236 (1963); Peyton v. Rowe, 391 U.S. 54 (1968); Carafas v. LaVallee, 391 U.S. 234 (1968); Nelson v. George, 399 U.S. 224 (1970). Cf. Schlanger v. Seamans, 401 U.S. 487 (1971). A trend of this kind, once begun, easily assumes startling proportions. The present case is but one more step, with the Alabama warden now made the agent of the Commonwealth of Kentucky.
I do not go so far as to say that on the facts of this case the result is necessarily wrong. I merely point out that we have come a long way from the traditional notions of the Great Writ. The common-law scholars of the past hardly would recognize what the Court has developed, see 4 W. Blackstone, Commentaries *131-134, and they would, I suspect, conclude that it is not for the better.
The result in this case is not without its irony. The petitioner's speedy trial claim follows upon his escape from Kentucky custody after that State, at its expense, had returned the petitioner from California to stand trial in Kentucky. Had he not escaped, his Kentucky trial would have taken place five years ago. Furthermore, the petitioner is free to assert his speedy trial claim in the Kentucky courts if and when he is brought to trial there. [410 U.S. 484, 502] And the claim, already strong on the facts here, increases in strength as time goes by.
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE POWELL concur, dissenting.
Today the Court overrules Ahrens v. Clark, 335 U.S. 188 (1948), which construed the legislative intent of Congress in enacting the lineal predecessor of 28 U.S.C. 2241. Although considerations of "convenience" may support the result reached in this case, those considerations are, in this context, appropriate for Congress, not this Court, to make. Congress has not legislatively overruled Ahrens, and subsequent "developments" are simply irrelevant to the judicial task of ascertaining the legislative intent of Congress in providing, in 1867, that federal district courts may issue writs of habeas corpus "within their respective jurisdictions" for prisoners in the custody of state authorities. The Court, however, not only accomplishes a feat of judicial prestidigitation but, without discussion or analysis, explicitly extends the scope of Peyton v. Rowe, 391 U.S. 54 (1968), and implicitly rejects Ex parte Royall, 117 U.S. 241 (1886).
In order to appreciate the full impact of the Court's decision, a brief reiteration of the procedural stance of the case at the time the petition for habeas corpus was filed is necessary. Petitioner is incarcerated in Alabama pursuant to a state court judgment, the validity of which petitioner does not attack. Petitioner had been indicted in Kentucky and a detainer filed by Kentucky authorities with the Alabama authorities. Kentucky had conducted no proceedings against petitioner; no judgment of conviction on the Kentucky indictment had been obtained. From Alabama, petitioner requested Kentucky authorities to ask the Alabama authorities to deliver [410 U.S. 484, 503] him to Kentucky so that petitioner could be tried on the Kentucky indictment. No action was taken on this request, and the Kentucky Supreme Court refused to issue a writ of mandamus requiring Kentucky authorities to request that Alabama deliver petitioner for trial in Kentucky. Petitioner then filed the instant habeas corpus proceeding in Kentucky, contending that he was "in custody" of Kentucky authorities and that the "custody" was illegal because he had been denied his right to a speedy trial. Petitioner is not seeking to attack collaterally a state judgment of conviction in federal court. In substance, petitioner is seeking, prior to trial, to force the Commonwealth of Kentucky to litigate a question that otherwise could only be raised as an absolute defense in a state criminal proceeding against petitioner.
The first inquiry is whether a state prisoner can, prior to trial, raise the claim of the denial of a right to a speedy trial by petitioning a federal court for writ of habeas corpus. The Court reasons that since Peyton v. Rowe, supra, "discarded the prematurity doctrine," ante, at 488, "petitioner is entitled to raise his speedy trial claim on federal habeas corpus."
Petitioner filed this petition alleging federal jurisdiction pursuant to 28 U.S.C. 2241, 2254. Section 2254 pertains only to a prisoner in custody pursuant to a judgment of conviction of a state court; in the context of the attempt to assert a right to a speedy trial, there is simply no 2254 trap to "ensnare" petitioner, such as the court below felt existed. The issue here is whether habeas corpus is warranted under 2241 (c) (3); that section empowers district courts to issue the writ, inter alia, before a judgment is rendered in a criminal proceeding. It is in the context of an application for federal habeas [410 U.S. 484, 504] corpus by a state prisoner prior to any trial in a state court that the effect of the instant decision must be analyzed.
The Court reasons that since Smith v. Hooey, 393 U.S. 374 (1969), held that a State must, consistent with the Sixth and Fourteenth Amendments, "make a diligent, good-faith effort to bring" a prisoner to trial on a state indictment even though he is incarcerated in another jurisdiction, id., at 383, and, since Peyton v. Rowe, supra, overruled "the prematurity doctrine," therefore, a prisoner can attack in a federal habeas corpus proceeding the validity of an indictment lodged against him in one State even though he is imprisoned in another. I cannot agree with this reasoning.
In Smith, this Court held that a State must make an effort to try a person even though he was incarcerated in another jurisdiction. That case did not, however, involve federal habeas corpus. It came here on certiorari after the state court had denied a petition for a writ of mandamus seeking to have the underlying indictment dismissed. The Texas Supreme Court had ruled that the state courts had no power to order the federal prisoner produced for trial on the state indictment. This Court reversed, holding that, in view of the Sixth and Fourteenth Amendment guarantees of a speedy trial, the State must, after demand therefor, attempt to obtain the prisoner from the sovereignty with custody over the prisoner.
It by no means follows, however, that a state prisoner can assert the right to a speedy trial in a federal district court. The fundamental flaw in the reasoning of the Court is the assumption that since a prisoner has some "right" under Smith v. Hooey, supra, he must have some forum in which affirmatively to assert that right, and that therefore the right may be vindicated in a federal district court under 2241 (c) (3). Smith v. Hooey did [410 U.S. 484, 505] not, however, establish that a right distinct from the right to a speedy trial existed. It merely held that a State could not totally rely on the fact that it could not order that a prisoner be brought from another jurisdiction as a justification for not attempting to try the defendant as expeditiously as possible. The right to a speedy trial is, like other constitutional rights, a defense to a criminal charge, but one which, unlike others, increases in terms of potential benefit to the accused with the passage of time. Barker v. Wingo, 407 U.S. 514 (1972). The fact that a State must make an effort to obtain a defendant from another sovereign for trial but fails, after demand, to make an effort would weigh heavily in the defendant's favor. But Smith v. Hooey does not necessarily imply that federal courts may, as the District Court did in this case, in effect, issue an injunction requiring a state court to conduct a criminal trial. If the State fails to perform its duty, Smith v. Hooey, it must face the consequences of possibly not obtaining a conviction, Barker v. Wingo. But the fact that the State has a duty by no means leads to the conclusion that the failure to perform that duty can be raised by a prospective defendant on federal habeas corpus in advance of trial. The history of habeas corpus and the principles of federalism strongly support the approach established by Ex parte Royall, supra, that, absent extraordinary circumstances, federal habeas corpus should not be used to adjudicate the merits of an affirmative defense to a state criminal charge prior to a judgment of conviction by a state court.
The Court's reasoning for allowing a state prisoner to resort to federal habeas corpus is that the prisoner is attacking the validity of a "future custody." The Court relies on Peyton to justify federal jurisdiction. Peyton, however, was in a significantly different procedural posture from the instant case. There, the Court held that a [410 U.S. 484, 506] state prisoner could challenge the constitutional validity of a sentence which he had not yet begun to serve when he was currently incarcerated pursuant to a valid conviction and sentence, but the sentence he sought to attack was to run consecutively to the valid sentence. Even though a person may be "in custody" for purposes of 2241 (c) (3), or 2254, if he has not yet begun to serve a sentence entered after a judgment of conviction, as the Court held in Peyton, it by no means follows that he is similarly "in custody" when no judgment of conviction has been entered or even any trial on the underlying charge conducted. The Court's suggestion that a person may challenge by way of federal habeas corpus any custody that might possibly be imposed at some time in the "future," which suggestion unwarrantedly assumes both that a constitutional defense will be rejected and that the jury will convict, is not supported by the language or reasoning of Peyton. Mr. Chief Justice Warren, writing for the Court in Peyton, emphasized the role of federal habeas corpus for state prisoners as "substantially a post-conviction device," 391 U.S., at 60 , and "the instrument for resolving fact issues not adequately developed in the original proceedings." Id., at 63. The Court there stated that the demise of the McNally rule would allow prisoners "the opportunity to challenge defective convictions." Id., at 65.
There is no doubt that a prisoner such as petitioner can assert, by appropriate motion in the courts of the State in which the indictment was handed down, that he should be brought to trial on that charge. Smith v. Hooey, supra. There is also no doubt that such a prisoner may petition a federal district court for a writ of habeas corpus prior to trial. See 28 U.S.C. 2241 (c) (3). What the Court here disregards, however, is almost a century of decisions of this Court to the effect that federal habeas corpus for state prisoners, prior to conviction, should not be granted absent truly extraordinary circumstances.
"That discretion should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the States, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution." 117 U.S., at 251 .
The judicial approach set forth in Ex parte Royall - that federal courts should not, absent extraordinary circumstances, interfere with the judicial administration and process of state courts prior to trial and conviction, even though the state prisoner claims that he is held in violation of the Constitution - has been consistently followed. Cook v. Hart, 146 U.S. 183 (1892) (custody [410 U.S. 484, 508] alleged to violate Art. 4, 2); New York v. Eno, 155 U.S. 89 (1894) (custody alleged to violate Supremacy Clause); Whitten v. Tomlinson, 160 U.S. 231 (1895) (custody alleged in violation of Constitution due to improper extradition); Drury v. Lewis, 200 U.S. 1 (1906) (custody alleged to violate Supremacy Clause). Cf. Ex parte Fonda, 117 U.S. 516 (1886); In re Duncan, 139 U.S. 449 (1891); In re Wood, 140 U.S. 278 (1891); In re Frederich, 149 U.S. 70 (1893). The situations in which pretrial or preconviction federal interference by way of habeas corpus with state criminal processes is justified involve the lack of jurisdiction, under the Supremacy Clause, for the State to bring any criminal charges against the petitioner. Wildenhus's Case, 120 U.S. 1 (1887); In re Loney, 134 U.S. 372 (1890); In re Neagle, 135 U.S. 1 (1890).
In addition to sanctioning an expansion of when a federal court may interfere with state judicial administration, the Court overrules Ahrens v. Clark, supra, and expands the parameters of which federal courts may so intervene. In Ahrens, the Court held that "the presence within the territorial jurisdiction of the District Court of the person detained is [a] prerequisite to filing a petition for writ of habeas corpus." 335 U.S., at 189 . The Court construed the phrase "within their respective jurisdictions" to mean that Congress intended to limit the jurisdiction of a district court to prisoners in custody within its territorial jurisdiction. Id., at 193.
The Court here says that the "language" of Ahrens "indicates" the result reached below. The explicit holding of the Court, however, is plainly much more than an "indication."
"Thus the view that the jurisdiction of the District Court to issue the writ in cases such as this is restricted to those petitioners who are confined or detained within the territorial jurisdiction of the court is supported by the language of the statute, by considerations of policy, and by the legislative history of the enactment. We therefore do not feel free to weigh the policy considerations which are advanced for giving district courts discretion in cases like this. If that concept is to be imported into this statute, Congress must do so." Id., at 192-193 (emphasis added; footnote omitted).
The result reached today may be desirable from the point of view of sound judicial administration, see Ahrens v. Clark, supra, at 191; Nelson v. George, 399 U.S. 224, 228 n. 5 (1970). It is the function of this Court, however, to ascertain the intent of Congress as to the meaning [410 U.S. 484, 510] of "within their respective jurisdictions." Having completed that task in Ahrens, it is the function of Congress to amend the statute if this Court misinterpreted congressional intent or if subsequent developments suggest the desirability, from a policy viewpoint, of alterations in the statute. See Cleveland v. United States, 329 U.S. 14 (1946). We noted in Nelson that the resolution of any apparent dilemma "caused" by this Court's holding in Ahrens is appropriately one to be undertaken by Congress. 399 U.S., at 228 n. 5. Legislative "inaction" in amending a statute to comport with this Court's evaluation of "[s]ound judicial administration" hardly warrants the disingenuous reading of a previous decision to achieve the result that Congress, despite judicial prodding, has refused to mandate. However impatient we may be with a federal statute which sometimes may fail to provide a remedy for every situation, one would have thought it inappropriate for the Court to amend the statute by judicial action.
The Court lists several "developments" that have somehow undercut the validity, in the Court's opinion, of the statutory interpretation of the phrase "within their respective jurisdictions." As the amended 2255 is relevant only to federal prisoners collaterally attacking a conviction, and as 2241 (d) applies only to intrastate jurisdiction, the relevance of the amendments with respect to the jurisdictional requirement of 2241 (c) (3) is not a little obscure. The interpretation of the phrase "within their respective jurisdictions" in Ahrens is hardly incompatible with these recent amendments of statutes dealing with situations not involving the interstate transportation of state prisoners. The further argument that Burns v. Wilson, 346 U.S. 137 (1953), "undermines" Ahrens overlooks the fact that the Court in Ahrens specifically reserved that question, 335 U.S., at 192 n. 4, the resolution of which is by no means an explicit rejection [410 U.S. 484, 511] of Ahrens. Finally, the fact that this Court has expanded the notion of "custody" for habeas corpus purposes hardly supports, much less compels, the rejection of a statutory construction of an unrelated phrase.
In the final analysis, the Court apparently reasons that since Congress amended other statutory provisions dealing with habeas corpus, therefore the congressional intent with respect to the meaning of an unamended phrase must somehow have changed since the Court previously ascertained that intent. This approach to statutory construction, however, justifies with as much, if not more, force, the result reached below: Congress, aware of this Court's interpretation of the phrase in Ahrens, deliberately chose not to amend 2241 (c) (3) when it selectively amended other statutory provisions dealing with federal habeas corpus. Indeed, the most recent indications of legislative intent support this conclusion rather than that advanced by the Court. See H. R. Rep. No. 1894, 89th Cong., 2d Sess., 1-2 (1966); S. Rep. No. 1502, 89th Cong., 2d Sess. (1966). See also n. 13, ante, at 497.

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Attempts to evade or defeat any of these withholding taxes.
The taxpayers in this case founded Jubilee Group Home, Inc. which provided home healthcare to individuals with intellectual disabilities. The corporation contracted with Medicaid to provide such services.
Michael Umeorah was Jubilee’s president from 1998 to May 2007. (Docket Entry No. 60-1 at 7; Docket Entry No. 60-31 at 17). Ulasi succeeded him as president and supervised Jubilee’s day-to-day operations. (Id.). It is unclear whether Ulasi is still Jubilee’s president, but the record shows that Michael Umeorah resumed managing Jubilee’s affairs in December 2013. (Docket Entry No. 60-1 at 7; Docket Entry No. 60-18 at 40:1–2). Although Michael Umeorah and Ulasi both ran Jubilee and set its financial policy, each director had independent authority over Jubilee’s operations. (Docket Entry No. 60-1 at 9; Docket Entry No. 60-18 at 37:21–24; Docket Entry No. 60-22 at 26–28). Ulasi, the Umeorahs, and Denchuwuku could all hire and fire employees, pay Jubilee’s bills, contract on Jubilee’s behalf, set salaries, and make federal-tax deposits. (Docket Entry No. 60-1 at 9–10). They received compensation for their work as directors, and Angela Umeorah received a salary for working as a nurse. (Docket Entry No. 60-1 at 7, 13; Docket Entry No. 60-17 at 38:11–13).
Jubilee began accumulating tax debt in 1998. (Id. at 8; Docket Entry No. 60-18 at 28:21–24). By 2007, Jubilee owed $1.25 million in unpaid employee payroll taxes. (Docket Entry No. 60-1 at 8; Docket Entry No. 60-49 at 1). Michael Umeorah and Ulasi calculated the payroll and determined the payroll-tax amounts Jubilee deposited from 1998 to 2006. (Docket Entry No. 60-1 at 10; Docket Entry No. 60-48 at 1; Docket Entry No. 60-50 at 1). Umeorah and Ulasi prepared, reviewed, or signed the payroll-tax returns from 1998 to 2015. (Id.). While Umeorah and Ulasi did the work for Jubilee’s payroll, any director could authorize paying the payroll, paying the payroll taxes, and signing the payroll-tax returns. (Id.). Ulasi, Denchukwu, and the Umeorahs knew of Jubilee’s failure to satisfy its tax obligations. (Id. at 11).
Angela Umeorah lived in Nigeria from 2004 to 2012. (Docket Entry No. 60-1 at 14; Docket Entry No. 60-17 at 19:21–23, 43:1–21). During these years, she visited Houston periodically to see family and to work as a nurse for a local hospital. (Docket Entry No. 60-1 at 14; Docket Entry No. 60-17 at 21:7–15). She knew that Jubilee had not paid its taxes before she departed, and she learned that it continued to fail to pay its taxes when she returned to the United States in 2012. (Docket Entry No. 60-1 at 14; Docket Entry No. 60-17 at 54:16–11, 56:6–10). In March 2012, Angela Umeorah worked with the Internal Revenue Service to pay down Jubilee’s tax debt. She also authorized multiple payments of Jubilee’s federal taxes. (Docket Entry No. 60-1 at 14; Docket Entry No. 60-17 at 59–60; Docket Entry No. 35 at 1–4, 6, 8–11, 19, 21, 23,).
Michael Umeorah lived in Nigeria from 2006 to 2013. (Docket Entry No. 60-1 at 11; Docket Entry No. 61 at 2). He visited Houston frequently, often staying for two weeks or longer. (Docket Entry No. 60-1 at 11; Docket Entry No. 60-18 at 63:3–10). Michael Umeorah knew that Jubilee owed taxes before he left for Nigeria, but he hoped that Ulasi and Denchukwu would take care of the debt while he was away. (Docket Entry No. 60-1 at 12; Docket Entry No. 60-18 at 42:19–21). When he returned to Houston in 2013, he and Ulasi negotiated a repayment plan with the Internal Revenue Service. (Docket Entry No. 60-1 at 13; Docket Entry No. 60-18 at 32–33).
While in Nigeria, the Umeorahs filed personal income-tax returns and made mortgage payments on their home in Sugar Land, Texas. (Docket Entry Nos. 60-37, 60-38, 60-39, 60-40, 60-41, 60-42, 60-43, 60-44, 60-45, 60-46). They kept Jubilee’s books and bank statements at their residence, which was the company’s mailing address. (Docket Entry No. 60-1 at 12; Docket Entry No. 60-17 at 40–41).
Michael Umeorah took control of Jubilee’s accounts in 2014. (Docket Entry No. 60-1 at 12; Docket Entry No. 60-18 at 40:1–2). From 2014 to 2018, Michael and Angela Umeorah made multiple payments to Jubilee’s creditors, other than the government, after learning of the unpaid tax debt. (Docket Entry No. 60-1 at 17–18; Docket Entry No. 60-17 at 90–93; Docket Entry No. 60-25 at 2–31; Docket Entry No. 60-26 at 2–6; Docket Entry No. 60-36 at 17).
In April and May 2007, the Internal Revenue Service assessed trust-fund-recovery penalties against Ulasi, Denchukwu, and Michael and Angela Umeorah under 26 U.S.C. § 6672, alleging that they were liable for Jubilee’s failure to pay federal payroll taxes for the 31 quarters from December 31, 2003, to March 31, 2015. (Docket Entry No. 1; Docket Entry No. 60-1 at 3–6). The Internal Revenue Service also assessed penalties against each defendant for failing to pay personal income taxes from 2004 to 2014. (Docket Entry No. 60-1 at 6). As of December 11, 2017, Michael and Angela Umeorah’s unpaid balances for the trust-fund-recovery penalties are $1,016,554.81 and $1,016,803.00, respectively. (Docket Entry No. 60-1 at 3, 6). Their joint income-tax assessment penalties total $124,007.05. (Docket Entry No. 60-1 at 6; Docket Entry No. 60-20 at 1–41). The government recorded tax liens against the Umeorahs' home in Sugar Land for the joint income-tax penalties and the individual trust-fund-recovery assessments. (Docket Entry No. 60-1 at 18–19; Docket Entry No. 60-28 at 1–8; Docket Entry No. 60-29 at 1–10; Docket Entry No. 60-30 at 1–10).
The Umeorahs dispute their liability to pay the assessments on the grounds that they lacked access to Jubilee’s accounts and that Ulasi misled them as to the unpaid tax debt. (Docket Entry No. 61 at 6).
The Fifth Circuit “generally takes a broad view of who is a responsible person under § 6672.” Gustin v. I.R.S., 876 F.2d 485, 491 (5th Cir. 1989). Responsibility “is determined by looking to one’s status within a corporation — that is, one’s duty and authority to withhold and pay taxes.” Barnett, 988 F.2d at 1454. It “does not require knowledge that one has that duty and authority.” Id. Because responsibility does not turn on actual knowledge, an individual “may be a responsible person . . . even though he does not know that withholding taxes have not been paid, and he does not cease to be a responsible person merely by delegating the responsibility to others.” Id. at 1454–55. Indicia of responsible-person status, none of which is dispositive, include whether the individual: (1) “is an officer or member of the board of directors”; (2) “owns a substantial amount of stock in the company”; (3) “manages the day-to-day operations of the business”; (4) “has the authority to hire or fire employees”; (5) “makes decisions as to the disbursements of funds and payment of creditors”; and (6) “possesses the authority to sign company checks.” Id. at 1455.
While one individual might have more power than other directors, officers, or employees to withhold and pay taxes, “[t]here may be — indeed, there usually are — multiple responsible persons in any company.” Id. The issue is “whether the person had the effective power to pay the taxes.” McClendon, 892 F.3d at 783 (quotation omitted). The issue here is whether the Umeorahs did, or “by virtue of [their positions in Jubilee], could have had[,] ’substantial' input into such decisions.” Barnett, 988 F.2d at 1455.
Even accepting his conclusory statements and unsubstantiated assertions, the uncontroverted record evidence shows that he met at least three of the Barnett factors during the 31 quarters from December 2003 to March 2015. He owned 25 percent of Jubilee’s stock, (Docket Entry No. 60-18 at 27:14–15; Docket Entry No. 60-31 at 17); he was a member of the board of directors, (Docket Entry No. 60-17 at 24–25; Docket Entry No. 60-18 at 27:5–10); and he had the authority to hire or fire employees, (Docket Entry No. 60-18 at 29:14–20). Before and while he lived in Nigeria, he also served as Jubilee’s president; managed the company’s daily affairs; was jointly responsible for payroll; could or did determine Jubilee’s financial policy; knew of the company’s tax problems; and worked with the Internal Revenue Service to address the unpaid tax debt. (Docket Entry No. 60-17 at 52:21–24, 79:13–15; Docket Entry No. 60-18 at 16:9–11, 32–33, 34:5–9, Docket Entry No. 60-31 at 17). These undisputed facts show that, as a matter of law, Michael Umeorah was a “responsible person” during the 31 quarters. See Arriondo v. United States, 196 F. Supp. 3d 708, 720–21 (S.D. Tex. 2016).
Although Michael Umeorah neither managed Jubilee’s day-to-day operations nor accessed its accounts from May 2007 to January 2013, his arguments about his time abroad lack merit. Umeorah’s arguments are that he was not a “responsible person” because he was unaware of Jubilee’s status, including its failure to deposit payroll taxes, and because he delegated authority to Ulasi. The arguments are foreclosed by Barnett, 988 F.2d at 1454–55, which held that ignorance of the company’s unpaid tax debt and delegation of the power to pay do not absolve a “responsible person” of liability under § 6672). Whether Michael Umeorah ignored his duty to pay taxes or delegated it to another party is irrelevant. Id.
Michael Umeorah’s best argument centers on his lack of access to company accounts. But, as the government observes, the power to write company checks is just one of six factors the court considers in determining responsibility; it is not dispositive. While abroad, Michael Umeorah met three of six factors for liability as a responsible person. He was a director; he owned a substantial amount of stock; and he maintained the authority to hire and fire employees. (Docket Entry No. 60-1 at 11–13; Docket Entry No. 60-18 at 27:5–9). He also visited Houston often and spoke to Ulasi about Jubilee’s affairs. (Docket Entry No. 60-17 at 42:17–25).
No evidence supports an inference that Michael Umeorah could not have accessed Jubilee’s accounts and funds if he asked Ulasi or other directors. Indeed, the opposite appears to be true. Michael Umeorah regained access without difficulty when he returned to the United States in 2013, suggesting that he was not a signatory on Jubilee’s accounts while abroad by choice or because of a lack of interest or diligence, not because Ulasi denied him access or misled him about Jubilee’s failure to pay taxes. (Docket Entry No. 60-18 at 23:16–19, 40:1–2).
The evidence shows that she met at least three of the Barnett factors because she was a director, owned 25 percent of Jubilee’s stock, and had the authority to hire or fire its employees. (Docket Entry No. 60-17 at 26–27; Docket Entry No. 60-23 at 1); see Rogers v. United States, No. H-13-3544, 2015 WL 1472342, at *4 (S.D. Tex. Feb. 11, 2015) (“[T]he Fifth Circuit has been clear that . . . the presence of one or more Barnett factors often indicates that an individual has actual authority to pay the taxes.”). She also made decisions as to the payment of creditors and even worked with the Internal Revenue Service to try to address Jubilee’s tax debt in 2012. (Docket Entry No. 60-17 at 59–60). Her attempt to escape responsible-person status by blaming Ulasi is unavailing. See Barnett, 988 F.2d at 1454–55. The undisputed facts show that Angela Umeorah had the effective power to pay Jubilee’s payroll taxes. Id. at 1454.


text:
This article is part of the Thematic Series "Organo-fluorine chemistry IV".
Herein the nucleophilic addition of Se-(trifluoromethyl) 4-methylbenzenesulfonoselenoate, a stable and easy-to-handle reagent, to alkynes is described. This reaction provides trifluoromethylselenylated vinyl sulfones with good results and the method was extended also to higher fluorinated homologs. The obtained compounds are valuable building blocks for further syntheses of fluoroalkylselenolated molecules.
Over the last decades, fluorinated compounds have been the subject of growing interest [1,2]. The specific properties introduced by fluorinated groups have contributed to the “success story” of fluorinated molecules. Nowadays, fluorinated compounds find applications in various fields, from life sciences to materials [3-15]. In the objective to design new molecules with specific properties, novel fluorinated substituents have been developed, such as diverse trifluoromethylchalcogeno groups, due to their particular electronic properties  and, more especially, to their high lipophilicity . Whereas the CF3O and CF3S substituents have been largely studied [18-23], the CF3Se group, albeit known, has gained only little attention until recently. However, selenylated derivatives present pertinent properties and have found some interest in materials , life sciences [25-33] and drug design [34-37]. Furthermore, very recently, the Hansch lipophilicity parameter of CF3Se has been determined (πR = 1.29) – a high value lying between that of CF3O and CF3S . Consequently, trifluoromethylselenolated molecules could represent interesting alternatives in the modulation of properties for various applications.
Despite such potential interest for CF3Se compounds, methods to their syntheses remain still limited . Direct trifluoromethylselenolation reactions have recently gained renewed interest and mainly follow two strategies. The nucleophilic approach is based on the use of the CF3Se− anion which must be prepared from stoichiometric amounts of metallic selenium [40-53]. Concerning the electrophilic approach, two reagents, that are easy to obtain, have been described: CF3SeCl [38,54-67] and CF3SeTs .
Recently, we have described the electrophilic addition of CF3SeCl to alkenes to access α-chloro-β-trifluoromethylselenolated molecules . These products are particularly interesting because the presence of the chlorine substituent opens the way to post-functionalization and thereby to syntheses of more elaborated compounds. However, the similar reaction with alkynes has failed and only a complex mixture was observed which is basically due to the high reactivity of CF3SeCl.
To overcome this issue, we have developed another easier-to-use reagent with a more controlled reactivity to perform electrophilic trifluoromethylselenolations, namely Se-(trifluoromethyl) 4-methylbenzenesulfonoselenoate (1a). This reagent is easily obtained by reacting sodium toluenesulfinate with in situ formed CF3SeCl . With this reagent at hand we envisaged the trifluoromethylselenolation of alkynes.
To our delight, the addition of 1a to phenylacetylene (2a) at room temperature, without any other practical precautions, lead to the expected addition product 3a with good yield (Scheme 1).
Scheme 1: Electrophilic addition of 1a to alkynes. Yields shown are those of isolated products; yields determined by 19F NMR spectroscopy with PhOCF3 as an internal standard are shown in parentheses.
Subsequently, the reaction was extended to various arylalkynes and afforded, in general, good yields. Satisfactory to excellent results were observed whatever the electronic character (donor or acceptor) of the substituents on the phenyl moiety were. Even highly electron-withdrawing groups led to satisfactory yields of the products 3h–j. The reaction is also not too sensitive to steric hindrance because good results were obtained also with ortho-substituted substrates 3c,e,i. Nevertheless, the reaction with aliphatic alkyne 2k, resulted in a low yield (28%).
The reaction is stereoselective with the exclusive formation of the trans-isomers. Further, a high regioselectivity is observed but, surprisingly, the anti-Markovnikov regioisomers were obtained. The stereochemistry and regiochemistry were confirmed thanks to the X-ray structure of compound 3a (Figure 1).
Figure 1: Single-crystal X-ray structure of 3a.
From a mechanistic point of view, the reaction starts certainly with the intermediate formation of the trifluoromethylselenonium ion I. This is in accordance with the observed trans-selectivity due to the anti opening of I by the toluenesulfinate anion. The regioselectivity could be rationalized by the steric hindrance between the aromatic moiety and the large nucleophile (toluenesulfinate anion) which favors the attack on the less hindered side (Scheme 2, pathway a). Such sensitivity to steric hindrance of I was confirmed by the lack of reactions observed with internal alkynes.
Higher homologs of reagent 1a are also available, the reaction was briefly performed with 1b and 1c (Scheme 3). The expected products were obtained with good yields. The tridecafluorohexylselenyl group in product 5a makes this compound interesting because it opens the way to applications in the design of fluorinated polymers or surfactants.
Scheme 3: Perfluoroalkylselenolation of alkynes. Yields shown are those of isolated products; yields determined by 19F NMR spectroscopy with PhOCF3 as an internal standard are shown in parentheses.
To conclude, Se-(trifluoromethyl) 4-methylbenzenesulfonoselenoate and Se-(perfluoroalkyl) 4-methylbenzenesulfonoselenoate have been confirmed as valuable bench-stable reagents to perform perfluoroalkylselenolations. Nucleophilic additions with alkynes to provide perfluoroalkylselenolated vinyl sulfones can easily be carried out. Se-(Trifluoromethyl) 4-methylbenzenesulfonoselenoate and Se-(perfluoroalkyl) 4-methylbenzenesulfonoselenoate constitute interesting building blocks for various applications.
Typical procedure: To a flask equipped with a magnetic stir bar were added 1 (0.25 mmol, 1.1 equiv), alkyne 2 (0.23 mmol, 1.0 equiv), and anhydrous THF (1 mL). The reaction was stirred at 25 °C for 15–18 hours (conversion was checked by 19F NMR with PhOCF3 as internal standard). The crude residue was purified by chromatography to afford the desired products 3–5.
Supporting Information File 1: Additional experimental and analytical data and NMR spectra.
Clément Ghiazza holds a doctoral fellowship from la Région Rhône Alpes. The authors are grateful to the CNRS and the French Ministry of Research for financial support. The French Fluorine Network is also acknowledged for its support. We thank Dr. Erwann Jeanneau (Centre de Diffractométrie Henri Longchambon) for collecting the crystallographic data and solving the structure of 3a.
Kirsch, P. Introduction. Modern Fluoroorganic Chemistry, 2nd ed.; Wiley-VCH: Weinheim, Germany, 2013; pp 1–24.
Yarovenko, N. N.; Shemanina, V. N.; Gazieva, G. B. Russ. J. Gen. Chem. 1959, 29, 924–927.
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Yagupol'skii, L. M.; Voloshchuk, V. G. Russ. J. Gen. Chem. 1967, 37, 1463–1465.
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2. Kirsch, P. Introduction. Modern Fluoroorganic Chemistry, 2nd ed.; Wiley-VCH: Weinheim, Germany, 2013; pp 1–24.
3. Becker, A. Inventory of Industrial Fluoro-biochemicals; Eyrolles: Paris, 1996.
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56. Yagupol'skii, L. M.; Voloshchuk, V. G. Russ. J. Gen. Chem. 1966, 36, 173–174.
57. Voloshchuk, V. G.; Yagupol'skii, L. M.; Syrova, G. P.; Bystrov, V. P. Russ. J. Gen. Chem. 1967, 37, 105–108.
58. Yagupol'skii, L. M.; Voloshchuk, V. G. Russ. J. Gen. Chem. 1967, 37, 1463–1465.
59. Yagupol'skii, L. M.; Voloshchuk, V. G. Russ. J. Gen. Chem. 1968, 38, 2426–2429.
© 2017 Ghiazza et al.; licensee Beilstein-Institut.

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FindACase | Pennington v. UPS Ground Freight, Inc.
Pennington v. UPS Ground Freight, Inc.
NEAL B. BIGGERS, JR. UNITED STATES DISTRICT JUDGE.
This cause comes before the court upon the defendant's motion for summary judgment. Upon due consideration of the motion, response, exhibits, and supporting and opposing authority, the court is ready to rule.
The instant wrongful death case arises from a three-vehicle collision sequence. On April 14, 2016, at around 10:30 at night, the decedent, Andriana Hall, was driving westbound on Interstate 78 near Olive Branch, Mississippi. The posted speed limit was 70 mph, it was raining heavily, and the roadway was unlit. Hall was travelling at a speed of 77 mph, as shown by the black box in her car, before her car hydroplaned, spun out of control and crashed into the steel cable barrier in the median between the eastbound and westbound travel lanes.
Hall's car then bounced off the cable barrier, crossed the left lane and crashed into a tractor-trailer driven by Sharanjit Parmar in the right lane. During this collision, Hall's car slid under the back, left-side of Parmar's trailer. Subsequently, Hall's car came to a complete rest in the left lane, perpendicular to oncoming traffic. At this point, none of the exterior or interior lights in Hall's car were illuminated.
During this time, two tractor-trailers were travelling on I-78 in the left lane. The first, a cattle truck, saw Hall's car and, without signaling, swerved quickly into the right lane to avoid collision. The second tractor-trailer was driven by James Capwell, an employee of UPS Ground Freight, Inc. (“UPS”). Capwell had been driving with his cruise control set on 66 mph; but, once he was able to see Hall's car resting in the roadway, he hit his brakes. Capwell, however, was unable to avoid impact and he struck the passenger's side of Hall's vehicle (hereinafter “UPS collision”).
Hall was pronounced deceased at the scene of the accident. No. autopsy was performed. The DeSoto County Coroner's report states that Hall died in an “accident” and that the Hall's probable cause of death was “multiple trauma (driver) due to car/18 wheeler crash. Car lost control.” Hall's wrongful death beneficiaries filed the instant suit on October 28, 2016, and assert claims for negligence and gross negligence against UPS for Capwell's alleged actions. UPS now moves for summary judgment and argues that no genuine issues of material fact remain and that it is entitled to judgment as a matter of law.
“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Courts have placed the burden upon the moving party to show an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the movant makes such a showing, the burden then shifts to the non-movant to “go beyond the pleadings and . . . designate specific facts showing that there is a genuine issue for trial.” Celotex at 324. A genuine issue exists “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Before finding that no genuine issue for trial exists, the court must first be satisfied that no rational trier of fact could find for the non-movant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
When deciding a motion for summary judgment, the court must view the underlying facts in the “light most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). As such, all reasonable inferences must be drawn in favor of the non-movant. Id. The Supreme Court has made it clear that “at the summary judgment stage, the trial judge's function is not himself to weigh the evidence and determine the truth of the matter.” Anderson, 477 U.S. at 249. Instead, the inquiry performed by the trial judge is merely a “threshold inquiry” of whether a trial is needed. Id. at 250.
“Summary judgment, although a useful device, must be employed cautiously because it is a final adjudication on the merits.” Jackson v. Cain, 864 F.2d 1235, 1241 (5th Cir. 1989). The court has discretion to allow a plaintiff's claims to proceed to trial. Anderson, 477 U.S. at 255. Further, when a case presents a “close call, ” courts generally find this to favor the non-moving party. E.E.O.C. v. West Customer Management Group, LLC, 899 F.Supp.2d 1241, 1258 (N.D. Fl. 2012) (citing Russsaw v. Barbour Cnty. Bd. of Educ., 891 F.Supp.2d 1281, 1295 (M.D. Ala. 2012)).
Mississippi law requires plaintiffs in wrongful death actions to “establish that the conduct of the defendant proximately caused the injury and death in question.” White v. Yellow Freight System, Inc., 905 So.2d 506, 511 (Miss. 2004) (citing Berryhill v. Nichols, 171 Miss. 769, 773, 158 So. 470, 471 (1935)). To sustain this burden, a plaintiff must introduce evidence demonstrating that “it is more likely than not that the conduct of the defendant was a cause in fact of the result.” Burnham v. Tabb, 508 So.2d 1072, 1074 (Miss. 1987) (citing W. Keeton, Prosser & Keeton on Torts, § 41 (5th ed. 1984)).


§ 195-1 Purpose and intent.
§ 195-3 License requirement for dealers.
§ 195-4 Application process for dealers; approval or denial.
§ 195-5 Identification of seller; recordkeeping requirements for dealers.
§ 195-6 Retention; revocation; other restrictions.
§ 195-8 Fees; period of license validity.
§ 195-9 Violations and penalties.
§ 195-10 Time limit for conformance.
Scrap metal dealers — See Ch. 206.
A current, valid New Jersey driver's license or identification card; a current, valid photo driver's license issued by another United States state; a valid United States passport; or other verifiable United States government issued identification, which will be recorded on the receipt retained by the dealer and subsequently forwarded to the local police department on request.
Any person, partnership, limited-liability company, corporation, or other entity who, either wholly or in part, engages in or operates any of the following trades or businesses: the buying for purposes of resale of precious metals, jewelry, or other secondhand goods, as defined herein; pawnbrokers, as defined herein; itinerant businesses, as defined herein. For the purposes of this chapter, transient buyers, as defined herein, are subject to the same licensing and reporting requirements as any other dealers.
Any person, partnership, association or corporation lending money on deposit or pledge of personal property, other than chose in action, securities, or printed evidences of indebtedness; purchasing personal property on condition of selling it back at a stipulated price; or doing business as furniture storage warehousemen and lending money on goods, wares or merchandise pledged or deposited as collateral security.
Gold, silver, platinum, palladium, and their alloys as defined in N.J.S.A. 51:5-1 et seq. and N.J.S.A. 51:6-1 et seq.
Every transaction conducted between a dealer and a member of the public in which precious metals, jewelry, or any other secondhand goods, as defined herein, are purchased or pawned.
Used goods, such as antiques, gold, silver, platinum, or other precious metals, jewelry, coins, gemstones, gift cards, any tools, telephones, typewriters, word processors, GPS devices, computers, computer hardware and software, television sets, radios, record or stereo sets, electronic devices, musical instruments, sporting goods, automotive equipment, collectibles, game cartridges, DVDs, CDs, and other electronically recorded material, firearms, cameras and camera equipment, video equipment, furniture, clothing, and other valuable articles. For the purposes of this chapter, secondhand goods shall not include goods transacted in the following manner: judicial sales or sales by executors or administrators; occasional or auction sales of household goods sold from private homes; auctions of real estate; or the occasional sale, purchase, or exchange of coins or stamps by a person at his permanent residence or in any municipally owned building who is engaged in the hobby of collecting coins or stamps and who does not solicit the sale, purchase, or exchange of such coins or stamps to or from the general public by billboard, sign, handbill, newspaper, magazine, radio, television, or other form of printed or electronic advertising.
A member of the public who sells or pawns used goods, such as precious metal, jewelry, or other secondhand goods, to a dealer.
No person, partnership, limited-liability company, corporation, or other entity shall engage in the business of buying, selling, or pawning of precious metals or other secondhand goods, as defined above, within the jurisdiction of the municipality without having first obtained a license therefor from the Borough Clerk, which license shall bear a number issued by the Borough Clerk. The application for a license to the Borough Clerk shall set forth the name, date of birth, and address of the dealer, whether or not he or she is a citizen of the United States, and whether or not he or she has ever been convicted of any crime(s), disorderly persons offense(s), or municipal ordinance violation(s), and the date(s) thereof. Advertising in any print or electronic media or by sign that any of those articles or secondhand goods referred to in § 195-2 above are being bought in any location within the municipality shall constitute engaging in business as a dealer of secondhand goods for purposes of this chapter. No person, partnership, limited-liability company, corporation or other entity shall place or cause to be placed any advertisement for purchase of such articles or goods without stating in the advertising the license number issued to a person or entity by the municipality. In any print advertisement, the license number shall appear in type no smaller than eight points in the lower right-hand corner of the advertisement. In any advertisement in electronic media, the license number shall be visually or audibly stated. Failure to state or indicate the license number shall be a violation of this chapter and shall be subject to the penalties established in § 195-9.
The type of operation contemplated to be conducted by the applicant, particularly whether the business is to be operated from a fixed location, whether it is to be conducted from a location primarily devoted to the purchase and sale of precious metal or other secondhand goods, and other factors bearing on whether the licensed business will be of a fixed and permanent nature. This section shall not be construed to require denial of any license solely on the grounds that the business is not from a fixed location or that the applicant is a transient buyer or itinerant business; however, applicants who fall under the category of a transient buyer or itinerant business must state with specificity on the license application the business address where transaction records required by § 195-6D of this chapter will be stored as well as the location where purchased goods will be retained during the mandatory inspection period required under § 195-6A.
The Chief of Police shall complete any investigation pursuant to this chapter within 30 days of the submission of the application to the Borough Clerk, fully completed by the applicant. If a criminal record check has been requested within the thirty-day period and has not been received by the Chief of Police within that period, the Chief of Police may, if all other factors are satisfactory, recommend a conditional issuance of the license subject to the finding regarding criminal record.
The Chief of Police shall, upon completion of the investigation, recommend "grant" or "denial' of the license to the Borough Clerk, who shall grant or deny the license. Any recommendation of the Chief of Police shall be in writing, and in the case of a recommendation of denial, shall state fully and specifically the reasons for said recommendation. If the Borough Clerk accepts the recommendation of the Chief of Police to deny any license, the applicant shall be notified in writing within 10 days of such denial and the Clerk shall forward to the applicant a statement of the reason or reasons for such denial.
Grounds for recommending denial of license may include reliable information indicating that the applicant has in the past engaged in fraudulent or deceptive business practices in a business identical to or similar to a dealer in secondhand goods. A license may be denied if the investigation reveals a conviction of the applicant or any of its principal officers or employees of any crime(s) or disorderly persons offense(s) in which deceit or misrepresentation is an element; or any conviction of any crime(s) or disorderly persons offense(s) involving theft or the receiving of stolen goods, regardless of whether the applicant was a principal, accessory before the fact, after the fact, or a co-conspirator; or any prior municipal ordinance violation(s) by the applicant or any of its principal officers or employees in this or any other jurisdiction. A license may be denied if the applicant fails to demonstrate an ability to satisfactorily comply with the electronic reporting requirements specified in § 195-5, the retention and inspection requirements of § 195-6, or any other portion of this chapter. Upon receipt of the recommendation of the Chief of Police, the Borough Clerk shall issue or deny the license accordingly, contingent upon the receipt of a bond as required by § 195-7 of this chapter.
Whenever any application for a permit is denied, the applicant shall be entitled to a hearing before the Borough Council, at which time the applicant shall be permitted to introduce such evidence as may be deemed relevant to such denial. Any applicant exercising the right to appeal must file a written notice of appeal within 10 days of receiving written notice of denial of a license to act as a dealer of secondhand goods.
Require of each person selling or pawning precious metals or other secondhand goods acceptable identification as defined above in § 195-2.
Require each seller to execute a "Declaration of Ownership," which shall contain the following certification: "My signature confirms that I am the sole legal owner of and am legally authorized to sell the goods being sold. By signing below I certify that I did not obtain and do not possess the identified goods through unlawful means. I am the full age of 18 years and the identification presented is valid and correct."
The information outlined in Subsection C above must additionally be electronically documented through the use of an electronic database system authorized by the Chief of Police. Installation and training in this software will be made mandatory as of the effective date of this chapter and licensing will be conditional upon compliance with proper use of the system as described herein. These records shall be subject to the inspection of any authorized police officer or any sworn law enforcement officer acting in the performance of their duty as set forth in Subsection F below. Through the use of applicably required computer equipment, and using the electronic format approved by the Chief of Police, every dealer shall enter all reportable transactions into the electronic database by the end of the close of business on the same date as the purchase or receipt of property for pawn or consignment. The information entered must contain all pertinent information outlined in Subsection C above.
In the event of a database failure or dealer's computer equipment malfunction, all transaction information is required to be submitted on paper forms approved by the Chief of Police within 24 hours from the date of purchase. In the event that paper forms are used, the dealer is responsible to enter all transaction information set forth in Subsection C above into the database as soon as possible upon the dealer's equipment being repaired or replaced, or the database coming back into service. Failure by the dealer to properly maintain computer equipment in a reasonable fashion, or failure by the dealer to replace faulty computer equipment, may result in the dealer being cited for a violation of this chapter and subsequently being subject to the penalties for doing so, including revocation of the dealer's license as described in § 195-6.
It shall be the requisite duty of every dealer, and of every person in the dealer's employ, to admit to the premises during business hours any member of the Police Department to examine any database, book, ledger, or any other record on the premises relating to the reportable transactions of precious metals or other secondhand goods, as well as the articles purchased or received and, where necessary, relinquish custody of those articles as provided in § 195-6. Itinerant businesses and transient buyers will be responsible for notifying the Chief of Police of the address where these records and articles will be stored.
All precious metals and other secondhand goods purchased, received for pawn, or received for consignment as described above, are to be made available for inspection by the Chief of Police or designee thereof at the designated business address for a period of at least seven calendar days from the date the transaction information is actually reported to the Chief of Police in the approved manner described above in § 195-5, except for jewelry, which must be maintained for at least 10 business days or for the statutory period provided in N.J.S.A 2C:21-36(d). All precious metal or other secondhand goods subject to inspection must remain in the same condition as when purchased or received for pawn and shall not be sold, disposed of, changed, modified, or melted by the dealer until the seven-day retention period has expired. Itinerant businesses and transient buyers will be responsible for notifying the Chief of Police of the location where the purchased item(s) are being held.
Upon probable cause that goods held by a dealer are stolen, and providing that the seller signed the mandatory statement required by § 195-5B upon the sale of those goods, a law enforcement officer with jurisdiction should charge the seller with theft by deception under N.J.S.A. 2C:20-4 on behalf of the dealer, who shall be considered the "victim" of the offense for the purposes of N.J.S.A. 2C:43-3. The officer shall seize the goods, provide the dealer with a receipt, and issue a criminal complaint against the seller for theft by deception and any other criminal charges for which the officer has probable cause that the seller has committed. If convicted of theft by deception and if so found by an order of a court of valid jurisdiction, the seller will be responsible for providing restitution to the dealer under N.J.S.A. 2C:44-2 for the amount paid by the dealer to the seller for the stolen goods.
If market conditions would create a hardship on the dealer by holding precious metals or other secondhand goods for such period, the dealer may present the property to the Chief of Police in order that it may be photographed and, if deemed necessary by the Chief of Police, an investigation may be implemented. The Chief of Police shall have the authority to grant the dealer a waiver of the requirement under this section.
In addition to all other reporting requirements, every dealer shall maintain for at least five years a written record of all purchases of precious metals and other secondhand goods in the form prescribed in § 195-5C.
Suspension. The Chief of Police or a designee thereof is hereby empowered to temporarily suspend for cause any dealer's license and rights to operate thereunder. This penalty shall be in addition to any fines and penalties the dealer may incur pursuant to § 195-9 of this chapter.
Procedure for suspension. Upon determination that appropriate grounds exist and that a suspension is warranted, the Chief of Police or a designee thereof shall issue a written notice of suspension of license to the offending dealer and to the Borough Clerk, which shall set forth the grounds for the suspension and notify the dealer of his or her right to appeal pursuant to Subsection H. A temporary suspension shall issue immediately, pending the outcome of any appeal taken. Suspended dealers must immediately cease engaging in the business of purchasing for resale, receiving for pawn, and/or selling of precious metals and/or other secondhand goods in the municipality until reinstatement.
Reinstatement. Suspended dealers may be reinstated only when the grounds leading to the suspension have, in the determination of the Chief of Police or the Chief's designee, been cured, corrected, or appropriately rectified; or if reinstatement is deemed appropriate by the three-person panel appointed by the Chief of Police upon the timely filing of an appeal as provided in Subsection H.
Revocation. A license issued under this chapter may be revoked by the Borough Clerk upon written recommendation from the Chief of Police or the Chief's designee that the dealer is no longer qualified, capable or competent to comply with the requirements of this chapter. This penalty shall be in addition to any fines and penalties the dealer may incur under § 195-9.
Procedure for revocation. Upon a determination that appropriate grounds exist and that a revocation is warranted, the Chief of Police or the Chief's designee shall so report to the Borough Clerk in writing. A temporary suspension will immediately and automatically issue if one is not already in effect, pending the outcome of the charge. A three-person panel, appointed by the Chief of Police, shall review the stated grounds for revocation and the panel shall issue an appropriate disposition of either suspension, revocation, or reinstatement. If the panel determines that revocation is the appropriate disposition, it shall set forth the grounds for the same in writing in the form of a notice of revocation, which shall be provided to the dealer. The notice shall advise the dealer of the right to appeal. If the panel determines that suspension is the appropriate disposition, it shall provide the dealer with a notice of suspension that shall advise the dealer of the right to appeal. Following revocation, the dealer must relinquish his or her license and must immediately and indefinitely cease operating as a dealer of precious metals or other secondhand goods within the municipality.
Appeal. Any applicant wishing to appeal an issuance of a suspension or revocation shall be entitled to a hearing before a three-person panel appointed by the Chief of Police, at which time the applicant shall be permitted to introduce such evidence as may be deemed relevant to such suspension or revocation. Any applicant exercising the right to appeal must file a written notice of appeal within 10 days of receiving written notice of revocation or suspension of license.
A dealer shall have the right to change the location of the licensed business, provided that he or she notifies the Borough Clerk, in writing, of the street address of said new location.
Each dealer covered under this chapter shall deliver a bond to the Borough Clerk executed by the applicant as principal and executed by a surety company authorized to do business under the laws of the State of New Jersey as surety. The bond shall be subject to review and approval by the Municipal Attorney, as defined in N.J.S.A. 40A:9-139, and shall be in the penal sum of $10,000, conditioned for the due and proper observance of and compliance with the provisions and requirements of all ordinances of the municipality in force or which may be adopted respecting the conduct of this business and conditioned also that the bond shall be and remain for the benefit of any person or persons who shall have received judgment against the dealer licensed under this chapter, which damage shall be established by a judgment of a court of proper jurisdiction. Said bond shall contain the following language: "The obligation of this bond shall, in addition to the Borough of Rockaway, be and remain for the benefit of any person who shall obtain a judgment against obligor as a result of damage sustained in operation pursuant to any license granted under this chapter." Said bond shall be kept for a minimum of one year from the date of issuance of license and must be renewed annually along with the license.
A nonrefundable fee for initial application and license for a pawnbroker or a dealer in precious metals or other secondhand goods and the annual renewal fee for a license are as provided in Chapter A263, Fees. These fees are separate from and in addition to any fees the dealer must pay in relation to the mandatory electronic database system designated by the Chief of Police, as provided by § 195-5D of this chapter. Payments are to be made in the manner directed by the Borough Clerk. A license is valid for a one-year period from the date of its issuance.
Violation of any provision of this chapter by any dealer shall, upon conviction thereof, be punished by a fine not in excess of the limitations of N.J.S.A. 40:49-5, or by a term of imprisonment or a period of community service not exceeding 90 days, in addition to a suspension or revocation of operating license as provided in § 195-6F and § 195-6G above. Each and every violation shall be considered a separate violation. Each violation shall result in an additional suspension period. Any person who is found guilty of violating the provisions of this chapter within one year of the date of a previous violation and who was fined for the previous violation may be sentenced by the court to an additional fine as a repeat offender and, in addition, may be subject to revocation proceedings as provided in § 195-6G. The additional fine imposed as a repeat offender shall not be less than the minimum or exceed the maximum fine provided herein, and same shall be calculated separately from the fine imposed for the violation of this chapter.
Any person, partnership, limited-liability company, corporation, or other entity engaging in the business of a pawnbroker, or a dealer in precious metals or other secondhand goods shall conform to the provisions of this chapter within 90 days following the effective date of this chapter.
Nothing contained in this chapter is intended to replace any preexisting statutory requirements governing pawnbrokers, as in N.J.S.A. 45:22-1 et seq., the sale of precious metals as in N.J.S.A. 51:6A-1 et seq., the sale of secondhand jewelry as in N.J.S.A. 2C:21-36 et seq., or any other statutory provision regarding any subject matter discussed herein.


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The claimant was represented by Joelle C. Newton, Esq., Law Offices of Paul N. Shapera, 179 Allyn St., Suite 501, Hartford, CT 06103.
This Petition for Review from the July 29, 1993 Finding and Dismissal of the Commissioner acting for the First District was heard August 26, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.
JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the July 29, 1993 Finding and Dismissal of the Commissioner for the First District. She argues on appeal that the commissioner improperly found that the claimant’s injury did not arise out of or in the course of her employment with the respondent employer. We affirm the trial commissioner’s decision.
The claimant was employed as a home health care aide with the respondent employer on June 8, 1991. She began that particular work day by traveling to a patient’s home in Hartford, after which she drove to another patient’s home in West Hartford. The claimant was paid on an hourly basis for time spent at patients’ homes, but was not compensated for travel time between those homes. While returning to the home of the first patient, she stopped at a beauty supply store in West Hartford to pick up “hair activators and other personal items for hair supplies.” This was a personal item and was not paid for by her employer. The claimant testified that while she was in the store, she remembered that the Hartford patient had asked her to pick up a lipstick, which the claimant bought for her patient.
The claimant slipped and fell while leaving the beauty supply store, sustaining a knee injury. The commissioner concluded that the claimant was doing a personal errand at the time of the injury and only purchased the lipstick as an afterthought. Thus, he concluded that the knee injury did not arise out of and in the course of the claimant’s employment. The claimant has appealed from the commissioner’s dismissal of her claim.
At the outset of our review, we note that the claimant did not file a Motion to Correct. Consequently, we are limited to the findings of the trial commissioner. Spindler v. Med-Center Home Health Center, 12 Conn. Workers’ Comp. Rev. Op. 130, 132, 1474 CRB-7-92-7 (Feb. 28, 1994); see also Vanzant v. Hall, 219 Conn. 674, 681 (1991).
The claimant contends that the facts found by the commissioner support a different legal conclusion than the one he reached. See Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). She proposes several arguments to the effect that her injury arose out of and in the course of her employment as a matter of law. “In order to come within the course of the employment, an injury must occur (a) within the period of the employment; (b) at a place the employee may reasonably be; and (c) while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it.” McNamara v. Hamden, 176 Conn. 547, 550-51 (1979). “An injury is said to arise out of the employment when (a) it occurs in the course of the employment and (b) is the result of a risk involved in the employment or incident to it or the conditions under which it is required to be performed.” Tovish v. Gerber Electronics, 32 Conn. App. 595, 607 (1993), affirmed, 229 Conn. 587 (1994), quoting Dombach v. Olkon Corporation, 163 Conn. 216, 221-22 (1972).
The claimant first argues that, along with her own interest, she was furthering the interest of her employer at the time of her injury by purchasing lipstick for a patient. In Dombach, supra, our Supreme Court held that an accident occurring during a journey undertaken for both business and personal reasons was compensable. “When a trip serves both business and personal purposes, it is a personal trip if the trip would have been made in spite of the failure or absence of the business purpose and would have been dropped in the event of failure of the private purpose, though the business errand remained undone; it is a business trip if a trip of this kind would have been made in spite of the failure or absence of the private purpose, because the service to be performed for the employer would have caused the journey to be made by someone even if it had not coincided with the employee’s personal journey.” Id., 224, quoting 1 Larson, Workmen’s Compensation Law, p. 294.5.
The commissioner found, however, that the claimant’s motivation for stopping at the beauty supply store was solely to purchase hair care items for herself. As an afterthought, she bought the lipstick for her patient. Furthermore, the commissioner made no finding that the claimant was required to run errands for patients, or that the claimant would have had to complete this particular errand at a later time had she not bought the lipstick on the date of her injury. We cannot assume these facts on appeal. “Our appellate review is limited to determining whether the conclusion reached resulted from an incorrect application of the law or from inferences illegally or unreasonably drawn from the facts found.” Spindler, supra, 132, citing Fair, supra, 539. On the basis of the facts found, the commissioner was not required to conclude that the claimant’s trip to the beauty supply store satisfied the “dual purpose” doctrine in Dombach.
The claimant also argues that her purchase of hair activator at the time of her injury falls under the “personal comfort” doctrine. Our courts have held that acts relating to the personal comfort of an employee are within the scope of his or her employment. Renckowski v. Yale University, 11 Conn. Workers’ Comp. Rev. Op. 48, 50, 1292 CRD-3-91-9 (March 18, 1993). “[N]o break in the employment is caused by the mere fact that the workman is ministering to his personal comforts, or necessities, as by warming himself, or seeking shelter, or by leaving his work to relieve nature, or to procure drink, refreshments, food, or fresh air, or to rest in the shade.” Id., quoting Lovallo v. American Brass Co., 112 Conn. 635, 639 (1931) (citations omitted).
The claimant maintains that her purchase of hair activator was an act of personal grooming designed to contribute to her job efficiency, and was incidental to her employment within the meaning of Renckowski because her employer required her to “look immaculate” and have neat hair while on duty. Again, there are no findings to support that contention. We do not know if the claimant’s purchase of hair activator was for immediate use, and the commissioner did not specify as to the employer’s grooming policy in his findings.
Moreover, the “personal comfort” doctrine was found inapplicable in Renckowski, where the claimant was injured at a restaurant adjacent to her employer’s premises while on a paid coffee break. Here, the commissioner found that the claimant was not being paid at the time of her injury, and the claimant was injured while purchasing beauty supplies at a site completely unrelated to her job duties. The definition of “personal comfort” given in Lovallo, supra, would seem to be even less compatible with these circumstances than the facts of Renckowski. We therefore hold that the commissioner did not misapply the law to the facts found in this case.

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