(dissenting):
Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), compels the conclusion that petitioners are "in custody" within the meaning of 28 U.S.C.A. § 2241, and that they may presently employ federal habeas corpus to attack state convictions which underlie detainers filed in the state of confinement if resort to available effective state remedies has been unavailing. Peyton v. Rowe does not decide if the attack must be mounted in the district of confinement, the district of sentencing, or both. The decision of the majority in the instant cases that access to the Great Writ should be limited to the district of sentencing is in direct conflict with the controlling case which we are obliged to follow. Leaving aside any question of the better policy as to which district should have jurisdiction,1 I would conclude that unless or until the Supreme Court of the United States modifies the views it expressed in Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948), or Congress revises the habeas corpus sections of the Judicial Code, the district within which petitioner is present at the time that application for the writ is made is the only district which has jurisdiction to hear and determine it.2
28 U.S.C.A. § 2241 not only requires a habeas petitioner to be "in custody; it also contains a territorial limitation on the power of the Supreme Court, any justice thereof, the district courts, and any circuit judge to issue the writ.3 The limiting words "within their respective jurisdictions" were definitively construed in Ahrens. There, after consideration of the statute4 and its legislative history, the conclusion was reached:
" * * * the view that the jurisdiction of the District Court to issue *363the writ in cases such as this [German nationals present at Ellis Island, New York, within the Eastern and Southern Districts of New York who sought ha-beas corpus from the United States District Court for the District of Columbia] 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.” 335 U.S., at 192-193, 68 S.Ct., at 1445.
The majority states that the Ahrens case “as explained in its subsequent history” is not a bar to the conclusion that the writ should be sought in a district court in the sentencing state. While the majority disavows that shifts in court personnel have made the dissent in Ahrens current law,5 I find no support in the other authorities cited for the conclusion that Ahrens has been subsequently modified.6 Hirota v. General of the Army MacArthur, 338 U.S. 197, 69 S.Ct. 197, 93 L.Ed. 1902 (1949), represented no departure from Ahrens. It dealt solely with the problem of where a writ should be sought by one not within the territorial confines of any district —a question specifically reserved in Ahrens. 335 U.S. at 192, ft. 4, 68 S.Ct. 1443, 92 L.Ed. 1898. United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955); Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953); Day v. Wilson, 101 U.S.App.D.C. 69, 247 F.2d 60 (1957), deal with the same question. That certain persons confined in an area not subject to the jurisdiction of any district court may seek habeas corpus in the district court which has jurisdiction over their keepers’ superior is a judge-fashioned rule to deal with the extraordinary case and provides no excuse to override the policy determination by Congress of the proper distribution of judicial power in *364the usual case where there is a clear choice of districts.
Nor do I find Ahrens eroded or shaken by Ex parte Endo, 323 U.S. 283, 65 S.Ct. 208, 89 L.Ed. 243 (1944), or Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285, 92 A.L.R.2d 675 (1963). They stand for the proposition that once jurisdiction of a district court has attached, in accordance with the principles of the statute and Ahrens, that jurisdiction may not be defeated by removal of the prisoner from the district in which he sought the writ, while present therein.
The majority seems to find some comfort in the enactment of 28 U.S.C.A. § 2255. I think the majority misses the lesson that the circumstances surrounding the enactment of that statute and the fact of its enactment teaches. Section 2255 was enacted in an effort to solve the practical problems which applications for writs of habeas corpus by federal prisoners created by reason of the fact that “a habeas corpus action must be brought in the district of confinement.” United States v. Hayman, 342 U.S. 205, 213, 72 S.Ct. 263, 269, 96 L.Ed. 232 (1952). Similarly, Congress may redistribute judicial power to issue a writ of habeas corpus upon the application of a prisoner in state custody.7 To date, it has not done so. But until Ahrens is modified or overruled, we should not refuse to follow the Supreme Court; nor should we override the jurisdictional scheme delineated by Congress even though we may think that it should be reexamined in the light of Peyton v. Rowe.
I would reverse and remand in Nos. 10,765 and 11,487, and affirm in No. 11,770.
. The majority opinion concludes that it is better policy for the district of sentencing to have exclusive jurisdiction. The inconvenience to the prisoner of carrying on litigation in a district in which he is not physically present and the justification for the burden to the state of sentencing to defend its judgment in a jurisdiction where it has elected to lodge a detainer, with damaging consequence to the prisoner, do not to my mind make resolution of the policy question completely one-sided. Because in my view these are considerations for Congress, I do not debate this point except to record this caveat.
. The same reasons which lead to the conclusion that prisoners in the position of petitioners are "in custody" indicate no difficulty in acquiring jurisdiction over a proper respondent. Presumably petitioners' keepers are within the district of confinement and since they are acting in part under the authority of the district of sentencing, they may be called upon to defend the validity of the latter's judgment. Of course they may seek and employ the aid and cooperation of the district of sentencing to achieve that end. Certainly they are in a better position to obtain such help than the prisoner would be to obtain aid in presenting his ease in a district in which he was not present.
. 28 U.S.C.A. § 2241:
"(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within, their respective jurisdictions. The order of a circuit judge shall be entered in the records of the district court of the district wherein, the re-.stra4n,t complained of is had.
"(b) The Supreme Court, any justice thereof, and any circuit judge may decline to entertain an application for a writ of habeas corpus and may transfer the application for hearing and determination to the district court having jurisdiction, to entertain, it." (emphasis supplied).
. The statute then, as now (28 U.S.C.A. § 2243) contemplated that the person making the return to the writ would, in the usual case, produce the body of the prisoner. In regard to this requirement, the Court made this significant statement:
"It would take compelling reasons to conclude that Congress contemplated the *363production of prisoners from remote sections, perhaps thousands of miles from the District Court that issued the writ. The opportunities for escape afforded by travel, the cost of transportation, the administrative burden of such an undertaking negate such a purpose. These are matters of policy which counsel us to construe the jurisdictional provision of the statute in the conventional sense, even though in some situations return of the prisoner to the court where he was tried and convicted might seem to offer some advantages.” 335 U.S., at 191, 68 S.Ct. at 1444.
The majority considers that “if fairness demands the presence of the petitioner at a hearing” in the sentencing state the district judge “has the power” to require his presence. The statute provides that unless the application presents only a question of law the body of the prisoner shall be produced. The statute does not recognize the discretion that the majority implies. It is the rare case, unless there has been a full and fair state evidentiary hearing, that an application for habeas corpus raises no question of fact; and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), can rarely, if ever, be satisfied without the prisoner’s presence at the state post-conviction hearing. Thus, the majority in effect scraps the policy considerations which impressed the Court.
. If a correct decision of these eases were to depend upon speculation of this sort, the evidence available to an inferior appellate court would create a standoff. In Carbo v. United States, 364 U.S. 611, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961), which considered the territorial reach of the writ of habeas corpus ad prosequendum and held that because of different legislative history the phrase “within their respective jurisdictions” did not have the same limiting effect as its counterpart did upon the Great Writ, two present members of the Court — the Chief Justice and Mr. Justice Black — dissented, relying heavily on Ahrens.
. The continuing vitality of Ahrens has been affirmed by other courts of appeal which have considered the issue. Booker v. Arkansas, 380 F.2d 240 (8th Cir. 1967) ; Duncan v. Maine, 295 F.2d 528 (1st Cir. 1961) ; Hart v. Ohio Bureau of Probation and Parole, 290 F.2d 550 (6th Cir. 1961).
. In fact Congress partially redistributed judicial power in 1966 by the enactment of P.Ij. 89-590, codified as 28 U.S.C.A. § 2241(d). That statute gives concurrent jurisdiction to the district courts of a multi-district state wherein a prisoner is confined under state process with a further provision that the district of application, in the exercise of its discretion and in furtherance of justice, may transfer the application to another district court for hearing and determination. That this statute was enacted is further evidence of the general recognition that the district of filing was controlled by considerations of territorial jurisdiction.