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Denial of Habeas Corpus Ad Testificandum Not Reviewable on Immediate Appeal

By David M. Reutter

The Seventh Circuit Court of Appeals has dismissed for want of appellate jurisdiction a prisoner’s appeal of the denial of a petition for writ of habeas ad testificandum.

Before he was sentenced to prison in Wisconsin, Dennis Earl Barnes was injured in an automobile accident and filed a diversity suit in federal district court in Illinois against the driver of the other car and the driver’s insurer, charging negligence.

To make it easier to litigate his suit, Barnes sought a writ of habeas corpus ad testificandum, to order his prison’s warden to deliver him to the Illinois federal district court for the trial of his diversity suit. On grounds it lacked power to issue it, the district court denied the writ, stating that Barnes could appear in the district court electronically under Federal Rule Civil Procedure 43(a).

In assessing the jurisdictional issue on appeal, the Seventh Circuit said it held that orders granting the writ are immediately appealable under the “collateral order” doctrine. It emphasized that its previous precedents were appeals from grant of the writ. A denial does not impose the costs and risks that justify an immediate appeal.

As any harm to the plaintiff from denial of the writ can be remedied on appeal should he lose the suit, the Court said it was not surprised that it could find no case that allowed appeal after denial of the writ. While 28 U.S.C. § 2253(a) makes the final order in a federal habeas proceeding appealable, Barnes is not seeking his freedom. The real proceeding is another case altogether, which does not end with the order at issue.

Moreover, a final order under § 2253(a) is subject to § 2253(c)(1)(A), which requires a certification of appealability to proceed on appeal. As Barnes cannot make “a substantial showing of the denial of a constitutional right,” he is not entitled to such a certificate.

The Court held that the geographical limitation of writs of habeas corpus in § 2241(a) does not apply to writs under (c)(5), i.e. writs of habeas corpus ad testificandum and ad prosequendum, even though § 2241(a) and 2253(a) do not suggest an exception for (c)(5) writs.

A final distinction between the cases that have allowed immediate appeal of such writs is that they were third-party cases. They allowed prison wardens to appeal the writ’s issuance. The Seventh Circuit said that what Barnes seeks is like any other step in discovery, and it is only reviewable when the case is final. Thus, it dismissed Barnes’ appeal.

See: Barnes v. Black, 544 F.3d 807 (7th Cir. 2008)

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Related legal case

Barnes v. Black