# Nelson v. George/Dissent Douglas

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Douglas
United States Supreme Court
399 U.S. 224
Louis S. NELSON, Warden, Petitioner, v. John Edward GEORGE.
Argued: March 31, 1970. --- Decided: June 29, 1970
Mr. Justice DOUGLAS, dissenting.
This California prisoner is seeking to challenge by federal habeas corpus the constitutionality of his conviction in North Carolina, the sentence for which he must serve when he finishes his California term. The infirmities of the North Carolina judgment that he alleges relate to the absence of a speedy trial and to the knowing use of perjured testimony. North Carolina filed a detainer against him in California; and it is that detainer, not the North Carolina judgment, that the Court uses to avoid decision on the basic issue raised in the petition. The petition for habeas corpus stated, 'It is the North Carolina Supreme Court decision that is under attack here.' The only reference to a detainer made in the petition was to the detainer filed prior to his return to North Carolina for trial. The reference to the detainer filed after his North Carolina conviction was made in his petition for rehearing. The District Court had dismissed the petition before Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426, was decided; and in his argument for a rehearing the prisoner sought to distinguish McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238, which Peyton v. Rowe overruled, by arguing that his case was different because the North Carolina detainer was being used to his disadvantage in California. Both the petition for habeas corpus and the petition for rehearing were pro se products. Thus the false issue got into the case.
The Court holds that the challenge of the North Carolina judgment may not yet be made in California because the prisoner has not yet shown under California law whether the existence of the North Carolina detainer can affect or is affecting his parole potential or custodial status and therefore that he has not exhausted his remedies under 28 U.S.C. § 2254 (1964 ed., Supp. V).
The remedies with which 28 U.S.C. § 2254 (1964 ed., Supp. V) is concerned relate to those which would remove the infirmities in the North Carolina judgment, making unnecessary federal intervention. Plainly, California can supply no such remedies.
The remedies to which the Court adverts are of a wholly different character-they concern California procedures for correcting any improper use in California of North Carolina's judgment. They are wholly irrelevant to the reasons why we held in Peyton v. Rowe that a state prisoner serving one sentence may challenge by federal habeas corpus the constitutionality of a second state sentence scheduled for future service. We ruled that if prisoners had to wait until the first sentence was served before the constitutionality of the second could be challenged, grave injustices might be done:
'By that time, dimmed memories or the death of witnesses is bound to render it difficult or impossible to secure crucial testimony on disputed issues of fact. * * * To name but a few examples (of prejudice resulting from the kind of delay McNally imposes), factual determinations are often dispositive of claims of coerced confession * * *; lack of competency to stand trial * * *; and denial of a fair trial, * * * Postponement of the adjudication of such issues for years can harm both the prisoner and the State and lessens the probability that final disposition of the case will do substantial justice.' 391 U.S. at 62, 88 S.Ct. at 1553.
If the prisoner was seeking to escape the rigors of the detainer filed by North Carolina, the exhaustion of California remedies would of course be proper. But the gravamen of the petition for habeas corpus concerned the validity of North Carolina's judgment and that is 'the question presented' within the meaning of 28 U.S.C. § 2254 (1964 ed., Supp. V).
The Court of Appeals, 9 Cir., 410 F.2d 1179, did not decide that only California, not North Carolina, could pass on the merits of the petition, viz., on the validity or invalidity of the North Carolina judgment. It emphasized that there were practical difficulties whichever forum were chosen. Id., at 1182. Trying the issues in California would put a burden on North Carolina prosecutors and witnesses. Trying the issues in North Carolina would entail problems of expense and security insofar as the prisoner's appearance there was needed. The fact that the federal court in California has 'jurisdiction,' it ruled, does not mean that it could not transfer the cause to the federal court in North Carolina.
The Court of Appeals left open for the informed discretion of the District Court the question of how and where the prisoner may be heard on the constitutionality of the North Carolina judgment. I would affirm the Court of Appeals and reserve for another day the question whether the application could be transferred to North Carolina for hearing.

## Notes

* ↑ '(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
* ↑ See 28 U.S.C. § 1404(a); Word v. North Carolina, 406 F.2d 352.
In H.R.Rep.No.1894, 89th Cong., 2d Sess., 1-2, it is stated:
'Section 2241 of title 28, United States Code, vests jurisdiction to entertain habeas corpus applications only in the district court for the district in which the prisoner is confined (Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898). Further, since there is no other forum '* * * where it might have been brought,' the application may not be transferred to a different district pursuant to the provisions of section 1404(a) of title 28, United States Code (Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254).'
See also S.Rep.No.1502, 89th Cong., 2d Sess. These reports are concerned with the 1966 amendment to § 2241, which permits the district court in whose district a habeas petitioner was convicted to consider the habeas petition even though the habeas petitioner is incarcerated outside the jurisdiction of that district court so long as the habeas petitioner is incarcerated within the State in which the district court sits. The 1966 amendment thus solves the problem posed by Ahrens but only where the district of his incarceration and the district in which he was convicted are in the same State. Section 2241, as construed in Ahrens, was thus left unaffected where the districts involved are in different States.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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