In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1881

Jon Behr,

Petitioner-Appellant,

v.

Kenneth Ramsey et al.,

Respondents-Appellees.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 8304--David H. Coar, Judge.


Argued September 6, 2000--Decided October 2, 2000



  Before Manion, Kanne, and Diane P. Wood, Circuit
Judges.

  Diane P. Wood, Circuit Judge. Petitioner Jon Behr
has been in the custody of the Sheriff of Kane
County, Illinois, since July 1998, because he has
not made child support payments for his daughter
Nicole. Several factors complicate what would
otherwise be a fairly ordinary problem. First, it
is not the State of Illinois that is seeking
support payments from Mr. Behr; it is the State
of Kentucky, to which Mr. Behr’s ex-wife moved
the child without the knowledge or consent of
either Mr. Behr or any Illinois state court.
Second, Kentucky has criminalized "flagrant non-
support" of a minor child living in Kentucky, and
is seeking Mr. Behr’s extradition for the purpose
of bringing charges against him under its law.
Third, the Governor of Illinois has issued a
warrant for Mr. Behr’s arrest and extradition,
pursuant to a request from the Governor of
Kentucky.

  Thus, the narrow question before us in this
case is whether Mr. Behr is entitled to defeat
the pending extradition request on the ground
that, were he sent to Kentucky, the state courts
there would not be entitled to exercise personal
jurisdiction over him because he lacks
constitutionally sufficient contacts with the
state. We conclude that, in the context of
interstate criminal extradition, any defenses Mr.
Behr may have to the jurisdiction of the Kentucky
courts may be presented only to the Kentucky
courts. As the record reveals that the
extradition request is otherwise in order, we
affirm the judgment of the district court that
Mr. Behr is not entitled to be released from the
custody of the Sheriff of Kane County, who may
proceed to execute the extradition warrant.

I

  Jon and Valerie Behr were divorced in 1984 in
Illinois. They have a daughter, Nicole, who was
born on June 2, 1981. As part of the Judgment for
Dissolution of Marriage, entered by the Circuit
Court for the Twelfth Judicial Circuit, Kankakee
County, Illinois, Valerie was given full custody
of Nicole. Mr. Behr was ordered to pay child
support of $25 per week. In 1991, the child
support order was modified to increase Mr. Behr’s
payments to $234 per month.

  At some point thereafter, Valerie and Nicole
moved from Illinois to Kentucky. They did so
without seeking the permission of the Kankakee
court, which Valerie apparently should have
sought pursuant to 750 Ill. Comp. Stat. 5/609
(West 2000). (Illinois cases hold that the
parties to a divorce decree awarding custody of
a child to one parent are entitled to have the
child kept within the jurisdiction. See, e.g.,
Martinec v. Sharapata, 66 N.E.2d 103, 105 (Ill.
App. 1946) (decree specified that custodial
parent was to stay in Illinois); Wade v. Wade,
102 N.E.2d 356, 360 (Ill. App. 1951) (even with
no provision in the divorce decree, it is against
the policy of Illinois to allow a custodial
parent to take a child out of the jurisdiction.
But even so, the custodial parent should not be
held in contempt for allowing the child to be
removed from the state without the knowledge or
permission of the noncustodial parent.)) Some
time later, Valerie complained to a Kentucky
court that Mr. Behr had failed to pay child
support for Nicole. The record does not reflect
how or when she made a demand for such payments
from him. There is, however, an undated document
labeled "Exhibit C" that is a handwritten note
from Valerie Behr to the Office of Monica J.
Bauer, Support Department [of the Circuit Court
of Kankakee County, as Exhibit B indicates],
referring to the docket number of the case and
notifying the court that her address had changed
to Murray, Kentucky. It is thus possible, though
we cannot tell (and it does not matter for our
disposition of this case), that Valerie
eventually told both the court and Mr. Behr about
her and Nicole’s whereabouts.

    On February 4, 1998, Mr. Behr was charged with
the criminal offense of flagrant non-support of
his minor daughter. The Governor of Kentucky
formally asked the Governor of Illinois to take
Mr. Behr into custody and extradite him to
Kentucky. See Ky. Rev. Stat. sec. 440.360 (Banks-
Baldwin 2000). The request was made under the
Uniform Criminal Extradition Act (UCEA), codified
in Illinois as 725 ILCS 225/1 et seq. (and in
Kentucky as K.R.S. sec. 440.150 et seq.). On July
27, 1998, Illinois Governor Jim Edgar issued a
warrant for Mr. Behr’s arrest, pursuant to the
UCEA, 725 ILCS 225/6. Mr. Behr was arrested and
taken into the custody of the Sheriff of Kane
County, Illinois. He remains in custody to this
day, despite the fact that Nicole is now over the
age of 18. We were told at oral argument that he
wears a monitoring device and has been allowed to
remain at home.

  Upon his arrest, Mr. Behr admitted that he has
not paid child support because, he says, he is
financially unable to do so. Nothing in the
record would permit us to assess the truth of
that representation, but it is not relevant in
any event. We are most concerned here with his
efforts to be released from the Kane County
Sheriff’s custody. He filed a writ of habeas
corpus under state law in the Circuit Court of
Kane County, Illinois, in November 1998. At the
hearing, the only issue the court addressed was
whether Mr. Behr was wanted in Kentucky. Finding
that he was, the court denied his petition for
release; Mr. Behr took no appeal from that
decision.

  Instead, he filed the present petition under 28
U.S.C. sec. 2241(c)(3) for federal habeas corpus
relief on December 24, 1998, alleging that he was
being held in state custody in violation of the
Fourth, Fifth, and Fourteenth Amendments to the
United States Constitution. (We do not know why
the state did not extradite him promptly after
the state court ruling.) The district court
examined the merits of his claims and on March
12, 2000, dismissed the petition. (Mr. Behr
requested a certificate of appealability, which
the district court denied, but no certificate of
appealability is required in proper sec. 2241
cases like this one, and so the denial does not
affect the scope of his appeal. See, e.g., Walker
v. O’Brien, 216 F.3d 626, 637-39 (7th Cir. 2000);
Lindstrom v. Graber, 203 F.3d 470, 473 (7th Cir.
2000).)

II

  The question Mr. Behr would like us to resolve
on this appeal is whether Kentucky has
jurisdiction to prosecute him criminally for non-
support of his minor child. He urges us to find
that it does not, because he does not have any
contacts (minimum or otherwise) with the State of
Kentucky: he has never been there, he has never
done anything there (though we note that this is
part of the problem), and he did not even know
that Valerie had moved there with his daughter.
The district court first found that the UCEA is
constitutional, citing the Supreme Court’s
decision in New York v. O’Neill, 359 U.S. 1
(1959), and then ruled that the minimum contacts
test found in cases like International Shoe Co.
v. Washington, 326 U.S. 310 (1945), and Kulko v.
Superior Court, 436 U.S. 84 (1978), does not
apply to criminal cases.

  In our view, this case must be approached
somewhat differently, though in the end we reach
the same result. The critical question is whether
the extradition warrant issued by the Governor of
Kentucky is valid. The governing analysis is the
one set forth in the Supreme Court’s decision in
Michigan v. Doran, 439 U.S. 282 (1978), where the
Court had to decide whether the courts of an
asylum state (there Michigan) were empowered to
nullify an executive grant of extradition if the
demanding state failed to enunciate a factual
basis to show probable cause for the charges. The
Court found that interstate extradition "was
intended to be a summary and mandatory executive
proceeding," as derived from the language of Art.
IV, sec. 2, cl. 2 of the Constitution. 439 U.S.
at 288. The Extradition Clause and the UCEA
incorporate the general principles of comity and
full faith and credit that appear in Art. IV,
sec. 1. Id. at 287-88.

  In keeping in line with that intent, once the
governor of the asylum state has granted
extradition under the UCEA, the courts of that
state have only a limited role to play. As the
Supreme Court put it in Doran:

a court considering release on habeas corpus can
do no more than decide (a) whether the
extradition documents on their face are in order;
(b) whether the petitioner has been charged with
a crime in the demanding state; (c) whether the
petitioner is the person named in the request for
extradition; and (d) whether the petitioner is a
fugitive.

439 U.S. at 289. The Court concluded by holding
that the Michigan courts had no authority to
conduct an independent analysis of the probable
cause that underlay the charges in Arizona that
had given rise to the extradition request.

  In our case, the Illinois state court has
already reviewed the Doran factors and has found
that Mr. Behr is subject to extradition. There is
nothing in the record that suggests we should not
give our usual deference to its findings; our own
review of the extradition documents shows that
they are facially in order. Mr. Behr does not
challenge the fact that he has been charged with
a crime in Kentucky and that he is the person
named in the request; and he is, in the
specialized sense used in the UCEA, a "fugitive."
See Strachan v. Colon, 941 F.2d 128, 130-31 (2d
Cir. 1991) (all that is required is that the
defendant no longer be in the state in which he
committed the crime, regardless of knowledge of
guilt). We have ruled before that a district
court should not go beyond the Doran factors when
it rules on a habeas corpus petition like this
one, see Coungeris v. Sheahan, 11 F.3d 726 (7th
Cir. 1993), as has the Second Circuit, see
Strachan, 941 F.2d at 130.

  Mr. Behr urges that his jurisdictional
objections are somehow more fundamental than the
probable cause argument that the Court considered
in Doran, but we cannot agree. Both relate to
constitutional rights enjoyed by an accused
person, and we see no hierarchy of the sort Mr.
Behr proposes in the Constitution itself. He
concedes, as he must, that the courts of Kentucky
are fully equipped to consider any arguments he
may wish to present in the criminal prosecution,
including: (1) the claim that Kentucky is not
entitled to criminalize out-of-state behavior
that has effects within its borders, such as his
failure to support his daughter; (2) the claim
that his Fourteenth Amendment due process right
would be violated if he is hauled into a Kentucky
court, relying by analogy on the civil decision
in Kulko, supra; and, (3) the claim that his lack
of financial resources excuses him from
compliance. The proper, and indeed the only,
place to bring those claims is in the courts of
the demanding state. See Strachan, 941 F.2d at
132.

  Anticipating this conclusion, Mr. Behr also
argues that it is unfair that his wife’s
unilateral act of moving with the child to
Kentucky should automatically expose him to
criminal prosecution there. What if, he asks
rhetorically, she had moved to Alaska? Or to
Guam? If, taking the case in its most favorable
light to him, he did not even know where Nicole
was, then how can he be convicted for willful or
flagrant non-support of her in the courts of a
strange state?

  These are two different points, to which we
respond briefly. First, the Extradition Clause of
the Constitution has the effect of diminishing
the significance of state lines for those accused
of a crime. It does not require (or even address)
extradition to foreign countries, which is
governed by specific bilateral treaties with each
individual nation. Any place to which Mr. Behr
could be extradited under the Constitution and
the UCEA would be a state or political entity
(such as Puerto Rico) that would be bound to
follow specific constitutional protections such
as the due process clauses. We do not doubt that
it would be inconvenient to be extradited to a
place like Alaska or Hawaii, but the fact is that
it is probably easier today to get from Kankakee
to Honolulu than it was to get from Savannah to
Boston at the time the Constitution was drafted.
The Framers of the Constitution drew this
balance, and they drew it, as the Supreme Court
put it in Doran, so as to avoid "balkanization"
and to avoid holding up judicial processes while
the asylum state conducted preliminary inquiries.
439 U.S. at 287-88. As for his second point, if
he truly had no knowledge of Nicole’s
whereabouts, we are confident that the courts of
Kentucky will be able to take that fact into
account in an appropriate way, whether as part of
their jurisdictional inquiry, their assessment of
the prosecution’s demonstration of scienter, or
otherwise.

III

  For these reasons, we Affirm the judgment of the
district court.
