Warren E. Burger: Argument this morning is number 595 that's Nelson against George. Mrs. Renne, you may proceed.
Louise H. Renne: Mr. Chief Justice, may it please the Court. This case arises on a petition for writ of certiorari filed by the warden of the California State Prison from the decision rendered by the United States Courts of Appeals for the Ninth Circuit. The court below held the jurisdiction existed in United States District Court for the Northern District of California to entertain a petition for writ of habeas corpus filed by a California prisoner serving a California sentence in California in order to challenge the constitutionality of an unrelated North Carolina conviction held that the California warden was an agent for the State of North Carolina and a proper party respondent to defend the action. It is respectfully submitted that the question raised in this case is essentially one and that is whether habeas corpus relief is presently available to a California prisoner in California who seeks to challenge the constitutionality of a sentence which has been imposed by another state.
Warren E. Burger: Mrs. Renne does the State of California have any option when another state places a detainer on a prisoner who is incarcerated in a California Institution?
Louise H. Renne: It does Your Honor, under the Agreement on Detainer -- well, I have to answer this question in two ways, Your Honor. If another state is not a party to the Agreement on Detainers, then in order for that prisoner to stand trial in another state requires an executive agreement followed by extradition proceedings. Clearly in this case, the state has a reserve clause. Under the Agreement on Detainers, a prisoner -- if a prisoner invokes the agreement on the face of the statute. The State of California is required to send that prisoner back to the other state. If however that it is the other state that initiates proceedings, there is a reserve clause retained by the governor may or the prisoner may disapprove and not be willing to go to the other state. We believe Your Honor that the answer to the first question we have raised is clearly in the negative. If the Court should however decide that habeas corpus really is presently available, then there is another question which is raised by this case and that is, what is the appropriate forum in which to bring an action of this kind? The District of Confinement or the District of Sentencing, the facts of this case are that the petitioner below, John Edward George was in April of 1964 convicted upon his plea of guilty to first-degree robbery in the San Francisco Superior Court. He was sentenced to state prison and under the California Indeterminate Sentence Law that is indeterminate five years to life sentence. Following his conviction, the petitioner was confined in San Quentin Prison and detainers were placed against him by three states. The State of Kansas, the State of Nevada, and the State of North Carolina, at this time North Carolina and California were parties to the agreement on detainers which as I have indicated. If a prisoner seeks to stand trial in another party state, he may invoke the procedures under the agreement and that is what happened in this case. Accordingly in March of 1966, George was temporarily released from custody in California to stand in trial in North Carolina. After one mistrial, George was convicted of robbery in February of 1967 in the North Carolina state courts. A sentence of 12 years to 15 years was imposed and as George alleged below, this sentence will not begin to run until he is in North Carolina. George was returned to California in February of 1967 and in September of 1967 the North Carolina Supreme Court affirmed his conviction. In December of 1967 George filed a petition for writ of habeas corpus in United States District Court for the Northern District of California. His first petition was captioned John Edward George versus the State of North Carolina and the district judge dismissed the petition or failure to name proper party respondent. Thereafter, George re-captioned his petition naming the warden of San Quentin Prison as an agent for the State of North Carolina and naming the warden of North Carolina State Prison name unknown. Ultimately, the District Court for the Northern District of California dismissed the petition on the basis of this Court’s decision in McNally v. Hill under which the Court had held that a prisoner must be confined under the sentence he is seeking to challenge in order to obtain habeas corpus relief. Thereafter a certificate of probable cause to appeal was granted by the District Court but prior to the opening briefs being filed in the Ninth Circuit Court of Appeals. This Court's decision in Peyton v. Rowe was decided. And in Peyton v. Rowe, this Court held that a Virginia prisoner could challenge the constitutionality of a consecutive sentence imposed by the State of Virginia. On the basis of Peyton v. Rowe, George filed a motion to remand the proceedings to the District Court. We were given notice of the motion and as our first appearance, filed in opposition to the motion to remand and move to dismiss the proceedings on the grounds that Peyton v. Rowe should not be extended to the interstate case that the California warden was not a proper party respondent in this habeas corpus action, that a North Carolina official who might be a proper party respondent was not before the court service of process had not been obtained and couldn't be obtained and that accordingly the District Court, the Northern District of California was without jurisdiction to proceed.
Speaker: Did you try to vouch so to speak or give notice to the North Carolina authorities of this proceeding?
Louise H. Renne: Yes, Your Honor from -- we have been -- although it is not in the record we have been in contact with the North Carolina Attorney General's office since the interception of this case. But their position is although it is not a matter of record but their position is that habeas corpus relief is not presently available in the case of this kind.
Speaker: Well, I suppose that’s based is it not of a theory on the Court of California can have no jurisdiction of the State of North Carolina?
Louise H. Renne: That is correct Your Honor, they have not been served with process, we're not aware of any way in which they could be. Nevertheless, the court below disagreed.
Speaker: Do you want anything else though in this case that the California authorities seize giving any effect or recognition to the North Carolina judgment?
Louise H. Renne: Well, it is our position Your Honor that we don't -- while we recognize that there is a conviction we give no effect to it and so that habeas corpus relief is not presently available in any court. We do take the position that it is only after this Court decides which we strongly urge that it not do that there is custody within the meaning of the habeas corpus statute as only then that this court need reach the question of what is the appropriate forum. If it decides that custody is existent in this case, it's only then that it need decide whether it is --
Potter Stewart: Yes, but at the threshold, is the only issue between California and the prisoner? Is the only issue whether the California authority should continue to recognize the North Carolina judgment?
Louise H. Renne: No, Your Honor.
Potter Stewart: Why?
Louise H. Renne: The prisoner is seeking to set aside North Carolina conviction.
Potter Stewart: Yes but why? Why? What dispute is there between him and the California authorities?
Louise H. Renne: It's our position that there is no dispute, Your Honor.
Speaker: Well, you said so that it makes a difference in terms of his parole --
Louise H. Renne: Your Honor, --
Speaker: -- and things like that.
Louise H. Renne: There is no showing in this record that his parole is affected by the North Carolina conviction.
Speaker: But that -- those were his allegations, weren't they?
Louise H. Renne: What he said in the court below was that the fact that there was a conviction outstanding assuredly affected his parole. As a matter of fact Your Honor, that is not California policy and we have submitted a policy statement of the Adult Authority in the court below where there is a conviction outstanding in another state. Particularly where that state happens to be the place of residence, primary place of residence of the prisoner, we will release -- it is our policy not frequently invoked, we will release the prisoner on parole earlier than might otherwise be the case. This case Your Honor this is our policy. It is not like Peyton v. Rowe where in Peyton v. Rowe you had consecutive sentences imposed by one state and there was a state statute which said that the concept of the sentences should be treated as one for purposes of parole eligibility. You do not have that kind of statute in this case and --
Speaker: Was there a hearing of this case?
Louise H. Renne: No, Your Honor, what happened after we --
Speaker: Well, if you have an allegation in that compliant in a petition that the North Carolina judgment does make a difference in terms of prisoner’s treatment by the warden of the California penitentiary and did the state respond to it? Did they file a return or?
Louise H. Renne: Well, what happened, Your Honor, we were not given notice of the proceedings until the Ninth Circuit. We filed an opposition to the motion to remand stating that this only sentence that this man was serving was a California sentence.
Speaker: Yes but lets assume for the moment that it didn't make a difference. That his allegations were absolutely true, that the detainer did make a difference in his treatment by the California authorities to his harm. Wouldn't you think that would state some kind of a case or controversy between him and the California authorities?
Louise H. Renne: No, Your Honor.
Speaker: Why not?
Louise H. Renne: Because that what the -- in order for habeas corpus relief to be available, he must be in custody in violation of the sentences seeking the challenge. California sentence was imposed in 1964, service of that sentence makes no difference whether he was acquitted later in North Carolina or not. Whether or not --
Speaker: Do you think -- what if he didn't bring a habeas corpus action, he just sued the warden to restrain him from taking into account the North Carolina judgment. Suppose he could do that, couldn't he?
Louise H. Renne: I don't think he could, Your Honor.
Speaker: Why not?
Louise H. Renne: Because the -- I don't know what his theory of action could be if what he is challenging is the reasonableness of prison policy in considering any charge or even a past conviction in determining whether or not he is more likely prisoner to escape. Then what he would be challenging is the reasonableness of prison policy but as yet there is no constitutional right to parole. There is no constitutional right to one level of confinement rather than another, and in any event what you are talking about in that case is the reasonableness of prison policy. If we are going to get into questions about whether or not the California imprisoning authorities can consider the fact that a man’s been convicted in other state in determining to whether or not he's eligible for minimum custody. Then Your Honor we respectfully submit that you're going to also have to face the question that the past conviction situation because if the prison authorities consider past convictions fully served in determining whether the man's more likely to escape or whether his eligible for minimum custody. Then the writ of habeas corpus, the business of the Court is going to be substantially expanded. We think that there is a decided difference between where you have sentences lumped together by one state and where you’re talking about sentences imposed by another state.
Speaker: So you think the only issue in this case really is whether a prisoner detained in one state under a sentence by that state may in any time whether the sentences of other states make any difference or not in his treatment in the prison whether that prisoner who's in Prison State A may raise in that state the validity of some convictions and State B that he hasn’t served yet, that's the issue?
Louise H. Renne: Yes, Your Honor. What we would like to make perfectly clear that this case isn't like a case where California has used the conviction of another state as a prior conviction increased the length of confinement or to render habitual criminal status available. That's not this case at all.
Speaker: What if it were the case? Let's assume that the North Carolina conviction had been before the California conviction and that conviction had been used by California as a basis for habitual criminal conviction or to enhance sentencing and he is sent to jail in California and then he brings his writ of habeas corpus to have declared unconstitutional the prior conviction of North Carolina.
Louise H. Renne: Well, California is itself clear Your Honor that where the state is attempting to increase the length of statutory service. Then in California, he may challenge the out of state conviction.
Speaker: And then how does that actually go forward? This goes forward as to the extent of evidence from North Carolina is essential or witnesses from there are essential and both sides just get the witnesses there don’t they?
Louise H. Renne: Well, it's a burden of proof on the state, Your Honor but in that case Your Honor, California is attempting to use the conviction for their own purposes but we’re not attempting to use the sentences of North Carolina for any purpose at all.
Speaker: So you're in effect saying there's really no case of controversy here at all between you and the prisoner?
Louise H. Renne: That's part of the problem Your Honor, that's part of the problem but most importantly --
Speaker: What else are you saying?
Louise H. Renne: Most importantly Your Honor, we are saying that Section 2241 (c) 3 of the federal habeas corpus statute provides that the writ of habeas corpus shall not extend to a prisoner unless he is in custody in violation of a Constitution. He is in custody under the California sentence. He is not challenging that sentence. That is why we say that custody under the habeas corpus statute is lacking. We think that the lack of custody is particularly emphasized by the courts holding below that we are the agents for North Carolina.
Thurgood Marshall: Mrs. Renne, that the Constitution and law aside, why didn't California turn him loose and let North Carolina feed it?
Louise H. Renne: Well, Your Honor the record doesn't show it. The facts are that this man was given a parole date an earlier parole date but there were -- there was a subsequent occurrence. It's a matter of dispute, the state says one thing, the prisoner says another but there was another occurrence in which his parole date was cancelled.
Thurgood Marshall: But I take it's your position is that California District Court has jurisdiction over the body but not the subject matter.
Louise H. Renne: Our position is Your Honor that the District Court has jurisdiction over the prisoner for anything connected with a California sentence but Mr. George has never challenged the constitutionality of the California sentence.
Thurgood Marshall: But he can challenge it in North Carolina?
Louise H. Renne: No, it's our position Your Honor that at this -- excuse me, challenge a California sentence in North Carolina?
Thurgood Marshall: He cannot challenge a North Carolina sentence in North Carolina as long as he is in jail if he outworn it.
Louise H. Renne: Well, he has not attempted to exhaust his state remedies in North Carolina. Now, two of the issues that he has raised in his petition for writ of habeas corpus in the California court have already been determined by the North Carolina Supreme Court.
Thurgood Marshall: But you don't want to rely on that, do you?
Louise H. Renne: No, no and although we think that certainly since he has never made any attempt to have his third issue determined by the North Carolina Supreme Court. In his petition below, he first alleged that the North Carolina sentence was imposed outside the time limits provided by the Agreement on Detainers so that the North Carolina court was without jurisdiction to proceed and that this was a deprivation of due process. His second ground was that it's all related to right to speedy trial. These were the two issues that the North Carolina Supreme Court determined. It was in his petition for writ of habeas corpus in the California court that he made the determination, raised the issue of knowing you supported your testimony. We think that the practical difficulties of the court's decision below do emphasize the lack of custody. The court has held that California is an agent for North Carolina but as respectfully submitted Your Honor, the agency connotes some sort of voluntary acceptance of authority and we have never assented to defending a North Carolina conviction. We are unwilling to do so.
Speaker: What do you visualize as to what is the holding of Court of Appeals below is that there are jurisdictions on California over this proceeding, is that right?
Louise H. Renne: That is correct, Your Honor.
Speaker: Now what do you visualize happening when you go back to the District Court? I'm going to put a specific question. Do you supposing California said to North Carolina, we give you an opportunity to come in and defend and if you don't choose to do so we will erase the detainer. Is that foreclosed under the District Court under the Court of Appeals decision?
Louise H. Renne: Well, the Court of Appeals has never said exactly what our obligation was Your Honor, I suppose that’s --
Speaker: What do you think about California's right to take that position vis-à-vis North Carolina and say if we do not choose to come in, we got no quarrel with this man ourselves. It's your judgment that’s being attacked here, given our custody be sure but you must defend it. If you don't choose to defend it we will arrange your detainer.
Louise H. Renne: Well, certainly honoring of the detainer is a question solely of comity Your Honor. We don't have to honor a detainer but even if we didn't give affect to the detainer, there's a very interesting factual situation in this case and that is that the State of Kansas still has a detainer filed against this man and the State of North Carolina knows that. When and if this man is released, he could be released to stand trial in Kansas. As far as we know, there's nothing to preclude the State of North Carolina than going to Kansas. But we understand to and have their detainer honor there. Or if that result would be the result that we didn't honor the detainer, what the court is actually would be asking us to do too is to giving a greater right to a detainer than we can give. Or to review a conviction in which we can give in an extradition proceeding. Where an extradition warrant or extradition proceedings are instituted in the California courts. We can't look at the underlying reasons walk through that extradition warrant. It could be we disagree but we can't do that under law, we can't look at the underlying facts and the court below said that we could call upon the North Carolina officials but were not so sure that they would be willing to come out. Number one --
Speaker: But suppose you could just give them that opportunity and say well if you don't care to come in were not going to take any responsibility for this, well just remove your detainer.
Louise H. Renne: Well, as I suggest Your Honor but if a man goes into another state in North Carolina possibly to get --
Speaker: As far as California is concerned by taking that procedure and refusing to become the agent for North Carolina in your own court to defend their conviction of this man as you say all right, if you don't want to come in we’re not going to honor your detainer.
Louise H. Renne: Well, --
Speaker: Wouldn't you have the right to do that?
Louise H. Renne: Well as I say Your Honor, detainer honoring a detainer solely a matter of comity but it could be that North Carolina wouldn’t have a detainer. Also a detainer is a request to be notified of a man's release.
Warren E. Burger: Well, Mrs. Renne if you indulged in what seems to be this very cavalier treatment of the sister states, you probably could expect reciprocity the next time the situation were reversed could you not?
Louise H. Renne: We could Your Honor.
Warren E. Burger: So what would be left of the doctrine of comity?
Louise H. Renne: Well I think it's a very serious problem Your Honor, what the court below has asked the states literally to fight among themselves and the practical problems of transporting records and witnesses across country even assuming you could get the witnesses. For example if the deputy district attorney who tried this case below is no longer in the North Carolina state government, then we don’t know how North Carolina could get that deputy district attorney in a California court if that deputy district attorney was unwilling. From the prisoner’s point of view, this result is untenable. He is asking a California judge to review a North Carolina conviction the California judge can't be familiar with North Carolina procedure. A California council no matter how competent can't know where to look for the records, can't know what witnesses to call, can't get the witnesses as even before the California court. We've not suggested that there's another form available because under this Court's decision in Ahrens v. Clark and under the traditional rules of habeas corpus. You must bring your petition if at all in the district of confinement but we think bringing the suit in the district of sentencing has tremendous practical problems too. You have problems of escape, you have the problems of the confining state, might be unwilling to have that prisoner go to the other state. You have the expense problems and there are no funds that we're aware of to provide for the transportation of the prisoner or its counsel across the country.
Warren E. Burger: Thank you Mrs. Renne, Mr. Cumming.
George A. Cumming, Jr.: Mr. Chief Justice and might it please the Court. I'm George Cumming of San Francisco, counsel for respondent, John Edward George. I think having in mind the considerations which led this Court to its unanimous decision in Peyton v. Rowe two terms ago, we're here today to consider whether or not respondent George is entitled to a timely and therefore meaningful hearing on the constitutional claims that he makes with respect to the North Carolina conviction.
Warren E. Burger: You're not suggesting this case is on all force with the case you're referring to?
George A. Cumming, Jr.: No I'm not, Mr. Chief Justice. There is a difference obviously Peyton v. Rowe dealt with prisoner facing consecutive sentences imposed by one state. This involves two states. I would say at the outset however that this distinction has been presented before Courts of Appeal and in that number I think some 16 judges and none of those 16 who considered the matter here before have considered that to be a meaningful distinction between Peyton and this case. Particularly with regard to Peyton's discussion and basis of the desirability and indeed perhaps the necessity of an early hearing on these claims, lest records, witnesses and evidence be washed by the passage of time.
Speaker: But not only the fact that these are two states convictions which distinguishes this from Peyton against Rowe. But there's at least one other distinction and that is in this case unlike Peyton against Rowe. The Court in which the petition for habeas corpus was filed was not the court where the person was confined which is a distinction is it not at some points? Perhaps you think, perhaps it seems type of technical but at least when I went to law school I always thought that in order for a court to have habeas corpus jurisdiction, a prisoner have to be confined somewhere within the jurisdiction of that court.
George A. Cumming, Jr.: And he is presently confined within the jurisdiction of the district court in the Northern District of California.
Speaker: But that is not that confinement that he is attacking.
George A. Cumming, Jr.: That's correct, that's I suppose it's a question of whether or not he is presently confined along the lines of Peyton v. Rowe.
Warren E. Burger: Mr. Cumming, what is the significance of the detainer in this sense if I may try to play this up in my own mind. Suppose California just of its own volition not under any pressure of any court or any other source, just simply said, “We no longer accept detainers from anybody.” Does that prevent the State of North Carolina from plucking this fellow as soon as his released from custody in California? What's the process by -- what would stop them from doing that independent of a detainer?
George A. Cumming, Jr.: I think independent of a -- we have to go back in time in this case a little bit. California and North Carolina are parties to the detainer grade, pursuant to that agreement, North Carolina obtained temporary custody of respondent in order to try him. The process for trying him absent while he was serving a California sentence, absent this detainer agreement, I'm not sure. It seems to me that some of the problems in this respect were canvassed by the Court’s decision last term in Smith v. Hooey.
Warren E. Burger: But part of this arrangement is to have something more flexible than an extradition, isn't it?
George A. Cumming, Jr.: That's correct, the respondent's application under this detainer agreement to be released in North Carolina for trial is deemed to be a labor of extradition by him. Both to go to North Carolina to be tried and to return to North Carolina to serve any sentence there imposed. The detainer agreement states that specifically, I believe its Article III (e).
Warren E. Burger: Well could counsel -- suppose it come to the day when California's sentences are running out. It comes to that last day, could California hold him in custody for even one hour after the sentence had expired in order to accommodate another state?
George A. Cumming, Jr.: I believe that it could, under the detainer agreement. The agreement states that the warden in this case California has a lawful and mandatory duty to give over the person of any prisoner whenever required by the detainer agreement.
Warren E. Burger: But isn't that at the expiration of the sentence?
George A. Cumming, Jr.: Yes.
Warren E. Burger: Could it -- are you suggesting it could be two weeks, two months, six months later?
George A. Cumming, Jr.: I suppose if North Carolina did not show up having previously been notified, this apparently there is an administrative provision for the notification in advance of the expiration and if they didn’t show up then inquiries failed to discover why. I suppose he could with impunity at that point discharge the prisoner.
Warren E. Burger: Well, but if he didn't discharge him the prisoner will have a pretty good habeas corpus claim, wouldn’t he?
George A. Cumming, Jr.: Certainly would, there would be at that point nothing, no authority I would think for the warden to hold it. I suppose from the detainer agreement you could probably infer some sort of authority for a short time to accommodate the agents of North Carolina to make the trip to California and pick him up. Perhaps, it would require that they show up on a release day so as to take him into their own custody immediately as he pass through the gate of San Quentin. I'm not sure so that there is come down perhaps to a split second. In any event, this case involves a situation where at least on the record thus far and on the detainer agreement, the warden is bound to give respondent over to North Carolina upon the completion of his valid sentence in California.
Thurgood Marshall: Well, what about Kansas?
George A. Cumming, Jr.: If Kansas has a detainer outstanding at this time on an untried charge, that detainer may or may not be in existence at the time that respondent is released from California custody because petitioner has no --
Thurgood Marshall: But assume it is, what do you do, draw a lot?
George A. Cumming, Jr.: Petitioners suggest that they honor the matters on a basis of that detainer first received and I guess the Kansas detainer was first received. He would honor that one first and release the petitioner to Kansas.
Thurgood Marshall: Well if the Kansas one is first, then clearly your case is in trouble.
George A. Cumming, Jr.: I suppose it is in this sense that if we remain in the situation where the -- whereas the warden’s discretion as to what to do about these detainers that is if we stay out of court as the warden urges that we ought to do. Then we are in a difficult situation but this is one of the reasons that we would like to get this matter on for hearing in the District Court to find out the validity of this North Carolina sentence and then approach the District Court for an appropriate or to deal with this complicated problems.
Thurgood Marshall: How did the North Carolina trial come up? Was that at his agreement?
George A. Cumming, Jr.: That was at his request under the detainer agreement.
Thurgood Marshall: Under his request, he left California, went to North Carolina, was tried in North Carolina, came back to California, and now he wants to attack what he brought on himself?
George A. Cumming, Jr.: Yes, he does. He wants to attack it, may I say at a time which he feels that his attack can be meaningful. That is of the time when the evidence and the witnesses and so forth may be available to him.
Thurgood Marshall: In California?
George A. Cumming, Jr.: This obviously presents a problem to him. This relates to the second question that the petitioner suggests has posed in this case and that is the appropriate form. Under Ahrens against Clark however, if there is any relief available to him. It is only in the District Court he is now confined. Now if --
Potter Stewart: Excuse me. Almost ten years ago, I so happen I wrote an opinion for the Court which made me familiar with the North Carolina Post-Conviction Hearing Act which I learned at that time and this has been repealed was an extremely enlightened and progressive piece of legislation. But I don't know whether it applies if a person is not incarcerated in the state. As I remember, however it requires that the petition very much like Section 2255 of the United States Code by Title 28, the petitioners filed with a sentencing court, that would be available to your client would it or wouldn't it?
George A. Cumming, Jr.: I'm not sure that that is so, he is --
Potter Stewart: It's a North Carolina General Statute Section 15-217 through to 222 I think. Are you familiar with that?
George A. Cumming, Jr.: I am not familiar with that.
Potter Stewart: I'd be well for you to become familiar with that. I think it would offer you a very easy way of relief in this case.
George A. Cumming, Jr.: I might very well. I am familiar however with the decision in Word against North Carolina which happen to involve the same state. And as I recall that decision, they suggested that post-conviction relief was not available in North Carolina unless the petitioner was physically incarcerated there and if memory serves me correct, Chief Judge Haynesworth, on behalf of the Fourth Circuit invited the State of North Carolina to reconsider this matter in light of Peyton against Rowe and what it held with respect to the challenging of future sentences.
Hugo L. Black: What is your stand on the State of North Carolina with Mr. warden particularly with that petition? Let's assume for the moment that he wasn't doing anything that you know your client now and maybe he had no anticipation that he was on account of the North Carolina objection. Do you still think you have a dispute with him with respect to validity in the North Carolina?
George A. Cumming, Jr.: I don't really think we do have a dispute with him. This --
Hugo L. Black: You mean you alleged you have a dispute with him, didn't you?
George A. Cumming, Jr.: Well -- we're forgetting as I understand that the question of some immediate impact as a result of this detainer such as a heavier hand and so forth.
Hugo L. Black: And that is for the moment?
George A. Cumming, Jr.: Yes, out dispute is this much. He, under the detainer agreement and assuming that North Carolina is detainer as first in line according to their own ways of resolving this and so forth. At the expiration of his current valid sentence, the warden proposes to release him to the custody of North Carolina.
Speaker: Well it has to be North -- whenever he is releasing them as the Chief Justice suggested in North Carolina to be known and the same result would be obtained, there is nothing the warden can do about it?
George A. Cumming, Jr.: I think the answer to that is that one of the --
Speaker: If the warden has not given notice?
George A. Cumming, Jr.: No. No.
Speaker: (Inaudible)?
George A. Cumming, Jr.: No, ideally I would like to have the warden say to North Carolina at that time, I have been ordered by the United States District Court for the Northern District of California after a full hearing on the validity of your conviction to refuse, to give this man to you.
Speaker: Well what if the North Carolina stayed outside the (Inaudible)?
George A. Cumming, Jr.: I suppose it might be so, I think the District Court has the unquestioned power to fashion an order which is directed to other California officials to decide. (Voice Overlap)
Thurgood Marshall: Well, Mr. Cumming --
Warren E. Burger: Let me ask you about this unquestioned power that you speak of. What would be the source of the power to the California Federal Court to interfere with the State of North Carolina picking up a prisoner at the end of his term in California?
George A. Cumming, Jr.: The source of that power would be twofold. First of all, it would be under the court's obligation to consider constitutional challenges that have been raised to that North Carolina conviction. And secondly, I think it’s been argued in the briefs that there is no jurisdiction of the District Court in California over the State of North Carolina. Under the facts of this case, the circumstances of this detainer agreement, I find that difficult proposition to understand.
Warren E. Burger: But have you served any piece of paper on the State of North Carolina?
George A. Cumming, Jr.: No, we have not except to the extent that the Ninth Circuit below held that it's a matter of law, Warden Nelson is the agent of the State of North Carolina and actually, nothing has been served on Warden Nelson because of course habeas corpus is a little bit different than the usual plaintiff defendant case. The process is in order emanating from the District Court calling upon the respondent to respond and show cause with respect to the conviction --
Warren E. Burger: Well, when --
George A. Cumming, Jr.: -- that have never gotten that far.
Warren E. Burger: But then no claim has been made by you, I take it from the outset that the California warden is the agent of the State of North Carolina?
George A. Cumming, Jr.: No we have pointed --
Warren E. Burger: This is a --
George A. Cumming, Jr.: -- under the detainer agreement, he is United States agent for the enforcement of its rights under the detainer agreement, the rights as they now stand. In part, what respondent wishes to challenge is a violation by North Carolina of the very provisions of that detainer agreement under which he was tried. To wit, the fact that he was not tried within the mandatory time limit of that detainer agreement and therefore I suppose our position on the merits if we're allowed to get to that would be that North Carolina simply lost the limited jurisdiction over him that he has acquired under the detainer agreement.
Thurgood Marshall: Mr. Cumming, is your position that if you're denied relief here and then Kansas gets him before North Carolina, you can litigate in the United States District Court in Kansas the same thing over again?
George A. Cumming, Jr.: I suppose Mr. Justice Marshall that we would have to.
Potter Stewart: (Voice Overlap) But that has to be your position?
George A. Cumming, Jr.: It has to be. The problem of course is that that may be many years in coming and this is why I returned again and again to Peyton v. Rowe. It is quite true that respondent has alleged some present impact of the detainer on him while he is on California now. Now perhaps there isn't any or perhaps it can be ameliorated but primarily he is in -- he is desirous of having a hearing on the claims that he makes with respect to the North Carolina judgment at the time when those when that hearing can be meaningful and not. He is presently serving a sentence of an indeterminate sentence of five years to life, and so he faces the same problem with respect to his second sentence that petitioner Rowe faced in Peyton against Rowe.
Warren E. Burger: Would it be unreasonable to say that the most meaningful time to test that conviction was while he was still in the State of North Carolina immediately following the trial when everything was fresh in the minds of everyone?
George A. Cumming, Jr.: That's probably true and he -- excuse me, he did test it by way of direct appeal. Now we're into the matter of a collateral attack on that conviction but if --
Hugo L. Black: What is his exact charges and validity of the North Carolina judgment?
George A. Cumming, Jr.: He makes three Mr. Justice Black. The first is that the detainer agreement by its terms requires that if a man be taken to North Carolina to stand trial that he must be tried within, I believe a 120-day period and if he is not, the underlying charge shall be dismissed, he was not tried within this --
Hugo L. Black: You mean if he was absent, they couldn't get him? You mean he is insisting that if he was in jail and they couldn't get him out --
George A. Cumming, Jr.: No, no, no, no. Once he request to be taken to North Carolina and is physically taken there to stand trial then the State of North Carolina or any other party to this compact has a limited period of time in which to try him and indeed --
Hugo L. Black: But he wasn't taken, was he?
George A. Cumming, Jr.: Yes, he was. Yes, he was in San Quentin Prison. North Carolina filed a detainer on an untried charge and Mr. George was notified of this charge and he has some rights under the detainer agreement. The detainer agreement is essentially an attempt to improve the speedy trial guaranteed in these types of situations where a man is incarcerated for many years. You've dealt with some of these problems last term in Smith against Hooey. He is entitled and --
Hugo L. Black: Was he taken -- was he taken back?
George A. Cumming, Jr.: Yes he was taken to North Carolina.
Hugo L. Black: At that time?
George A. Cumming, Jr.: At that time and tried and convicted and immediately returned to California, so --
Hugo L. Black: So, if he charge now, (Inaudible) you're not charging anything unconstitutional in that?
George A. Cumming, Jr.: The fact that he was not tried within the time limit that is --
Hugo L. Black: How long did it take?
George A. Cumming, Jr.: I'm not sure it took longer than the mandatory time provision of the detainer agreement. It seems to me that the detainer agreement provides for 120 days after he arrives in North Carolina.
Hugo L. Black: That's on the North Carolina law?
George A. Cumming, Jr.: No, well yes, North Carolina law to the extent that that is represented by this detainer compact which has been signed by a number of states and the provisions --
Hugo L. Black: You share that question in the Supreme Court of North Carolina?
George A. Cumming, Jr.: Yes, yes he has.
Hugo L. Black: Inside and against on their law?
George A. Cumming, Jr.: On their law.
Hugo L. Black: What's your other question on this?
George A. Cumming, Jr.: The second question would be not withstanding the violation of the -- the precise violation of this time period. It may be that the delay represents if the denial of a speedy trial under the Sixth Amendment and his third claim is that he was convicted on the basis of testimony known by the prosecution to be perjurious. Those are his three contentions. They may all be without merit but we've never had a hearing on that and we'd like to have one. I beg your pardon?
Hugo L. Black: You want to try that question in California?
George A. Cumming, Jr.: Under Ahrens v. Clark that's -- at this time that's the only place we cant try it and we all have some difficulty trying it there but we'll have a lot more difficulty if we have to go back to North Carolina and try it 10 years from now or 20 years from now or 30 years from now, it would be impossible.
William J. Brennan, Jr.: Mr. Cumming, Mrs. Renne told us I think that if the alleged that this North Carolina conviction were being used some way by the California authorities as bearing on this time for release under the California conviction that there's a remedy in the California state courts or a claim like that, do you agree with that?
George A. Cumming, Jr.: I believe that to be the law Mr. Justice Brennan.
William J. Brennan, Jr.: Well, now if that is the law, there is an allegation as I understand it here that that is what's happening that the California authorities are using this North Carolina conviction to his prejudice. I thought ordinarily that a federal habeas corpus proceeding could not be entertained until there've been an exhaustion of state remedies.
George A. Cumming, Jr.: That's quite correct.
William J. Brennan, Jr.: Well, why then -- why would not this proceeding be premature in the federal courts since I gather there's been no effort to begin a proceeding in the California state courts?
George A. Cumming, Jr.: It may very well be premature, I'm not frankly -- we were associated in this case when it was in the Ninth Circuit and we're perhaps a little bit less -- it might be with the arguments that we would make if we had some basis to get into the District Court in this instance.
William J. Brennan, Jr.: Well, if on the record, it comes to us. It would appear that he hasn’t exhausted his reasonable amount of what happened below ought not we just vacate everything that's happened and send it back to be held pending his going to the state --California state courts?
George A. Cumming, Jr.: I don't think so because --
William J. Brennan, Jr.: But why not if --
George A. Cumming, Jr.: We are also concerned not with the --
William J. Brennan, Jr.: But the statute makes it clear doesn't it that the federal courts are not to entertain federal habeas until there’s been an exhaustion of any presently available remedy in the state courts, isn't it?
George A. Cumming, Jr.: That's correct. I think that the proceeding ought not to be vacated for this reason. We're not only concerned with such present effects as there may be that is holding him with a heavier hand, the things that I believe Mr. Justice White discussed just a few moments ago.
William J. Brennan, Jr.: But doesn't that suggest --
George A. Cumming, Jr.: We're also concerned with challenging the validity of the North Carolina on the merits.
William J. Brennan, Jr.: Well, doesn't that then raise another question that Mr. Justice Stewart put to you? If there has to be exhaustion of any available state remedies before any federal court can entertain habeas, may there not be in North Carolina a post conviction remedy which has not yet been exhausted?
George A. Cumming, Jr.: I believe --
William J. Brennan, Jr.: That the statute will require them to exhaust before the federal district court can entertain this application at all?
George A. Cumming, Jr.: That's correct but I believe that there is no such remedy. As it was raised -- as I mentioned in Word against North Carolina, as I recall, the law there in North Carolina was that you have to be physically in custody in North Carolina.
William J. Brennan, Jr.: Oh! I see.
George A. Cumming, Jr.: The Fourth Circuit enlightened North Carolina to reconsider that matter. Although, I have trouble with that because the statute speaks in terms of remedies available at the time the petition was filed.
William J. Brennan, Jr.: Well you're answer to me is there is no North Carolina proceeding?
George A. Cumming, Jr.: So far as I know they have not modified their law under the suggestion of the Fourth Circuit.
Thurgood Marshall: Mr. Cumming, suppose the State of California agrees and said we will lift the detainer and then send a telegram and tells we will release him on some certain dates. What can you do about that?
George A. Cumming, Jr.: I suppose that we would have to apply to the -- an appropriate court that no one else in California assist. In other words, as I understand your question, you're asking me, if what would we do if the warden gave us voluntarily the sort of relief that we’re seeking in the District Court?
Thurgood Marshall: My specific question was if the warden released the detainer and sent a collect telegram so it won’t cause California any money. Does the State of North Carolina say, we will release (Inaudible) at 11 o'clock at the East gate, what could you do about it?
George A. Cumming, Jr.: I suppose we would have to as I said apply to an appropriate court to prevent anyone from California in assisting North Carolina and retaining custody or North Carolina can't simply come and --
Thurgood Marshall: Under what law could you prevent somebody from notifying another state that we get can try to release a person?
George A. Cumming, Jr.: We couldn't prevent notification --
Thurgood Marshall: Well that's what I'm saying.
George A. Cumming, Jr.: No, we couldn't prevent that.
Thurgood Marshall: You couldn't do a thing about it?
George A. Cumming, Jr.: No, that's entirely correct.
Thurgood Marshall: And they pick him up and go through extradition and there he goes.
George A. Cumming, Jr.: That's right, that's right.
Thurgood Marshall: Well, what's this case all about?
George A. Cumming, Jr.: This case, in extradition, he at least has some basis to appeal to the executive of the State of California for consideration. Extradition habeas corpus may be limited, an extradition proceeding may be a very short one but he has some basis to appeal to someone to give some consideration to his claim that the North Carolina sentence is invalid. At the present he has none because he's waived extradition. Under the detainer agreement, he's waived extradition by requesting to go there and stand trial. He's going there, he stood trial and in the interim he's asking them to respond --
Thurgood Marshall: And in the meantime, he is paying his debt in California and not his debt in North Carolina?
George A. Cumming, Jr.: That's right, that’s entirely correct.
Warren E. Burger: Let me try a little variation of Justice Marshall's question. Suppose not California but North Carolina voluntarily surrenders, waives its detainer agreement in California. Where have you got any jurisdiction in the State of California federal courts, state courts, or any other courts?
George A. Cumming, Jr.: If it waives?
Warren E. Burger: Yes, just simply says we withdraw our detainer.
George A. Cumming, Jr.: Well then, I suppose he doesn’t go to North Carolina to serve that sentence.
Warren E. Burger: Well, it waives the detainer but that doesn't prevent them from having three deputy sheriffs in North Carolina sitting outside the east gate as Mr. Justice Marshall suggested to pick him up.
George A. Cumming, Jr.: That's right, they would have to go through traditional extradition proceedings, but as I say, at least at that point he would have some recourse. It might not be as greater recourse as in habeas corpus at present time but at least some recourse in which he could bring to the attention of the executive or perhaps the court under the extradition habeas corpus his charges.
Warren E. Burger: Well then, is it possible we're engaged in something of an exercise in futility here?
George A. Cumming, Jr.: I don't think --
Warren E. Burger: Unless, we assume that North Carolina is just going to let this man walk off in the case of their conviction?
George A. Cumming, Jr.: I don't think that the court is exercising -- is going to be exercising a matter of futility. I think that there's an ample basis to hold on to hold on this detainer agreement and the responsibilities which the party states undertake for each other to hold that North Carolina is within the jurisdiction of the District Court in California. It has come to California once to pick him up, take him back there, try him; it will presumably come there again to pick him up. Take him back without extradition or any judicial or executive inquiry into the propriety of that. All he's asking is that they come out here in the interim and answer to his charges that the proceedings which were handled in North Carolina violated his constitutional rights.
Warren E. Burger: But you do concede that if North Carolina surrenders its detainer, that no California federal court has any jurisdiction? Your entire jurisdictional theme rests upon the agency concept, does it?
George A. Cumming, Jr.: I don't think it does.
Warren E. Burger: Why? I thought we --
George A. Cumming, Jr.: We're required to sue the warden because he is the present custodian. If we sued the State of North Carolina, as indeed we did in the first instance, the first petition which incidentally is not printed in the appendix because except for the caption that is identical to the amended petition was caption John Edward George versus the State of North Carolina. Now if he filed that petition in the federal court in San Francisco, it might very well be that the court would hold. That it had jurisdiction over the named respondent to witness State of North Carolina. It strikes me that it would be inappropriate at that point to name the warden the traditional respondent in North Carolina because obviously he is not in jail, but I think that there would be relief available. Our naming of Lewis Nelson is because of his obligations under the detainer agreement. If he had no obligations under the detainer agreement, I do not believe that we would be without remedy in California. Thank you very much.
Warren E. Burger: Thank you Mr. Cumming. Mrs. Renne, you have four minutes left.
Louise H. Renne: Your Honor if I may briefly respond to two primary points. Mr. Justice Brennan raised the question of my representation to the Court. This is not a case and it is our representation that this is not a case or California has attempted to use North Carolina conviction to increase the length of the California sentence or to classify the defendant as a criminal.
William J. Brennan, Jr.: Well, I know that is the position you took earlier, Mrs. Renne.
Louise H. Renne: That is correct, Your Honor.
William J. Brennan, Jr.: But is it true that there is an allegation here that it was so you?
Louise H. Renne: No, Your Honor.
William J. Brennan, Jr.: Well, that is not alleged in this?
Louise H. Renne: No, that is not alleged.
William J. Brennan, Jr.: I see.
Louise H. Renne: As I understand there is some allegation that might affect his parole consideration. That kind of allegation was made below but that's a totally different question. The record doesn't support and in fact we don't think the record will support it.
William J. Brennan, Jr.: Well, well, yes even though that's not true. Is it not ordinary habeas practice in the federal district courts such a way to ask the very first question? Have you exhausted your state remedies?
Louise H. Renne: Oh! Yes, that's true Your Honor.
William J. Brennan, Jr.: Well, why wasn't that been in this case?
Louise H. Renne: Because Your Honor, it's -- exhaustion of state remedies presupposes and the applicability of present habeas corpus relief. The issue raised in the court below was, is there presently available habeas corpus relief and it is our position that is not.
William J. Brennan, Jr.: Yes, but that doesn't say that. I thought ordinarily, the position was that there isn't presently available federal habeas relief until you've established it to exhaust all your state remedies that are presently available.
Louise H. Renne: Well, we do think in this instance Your Honor that there hasn't been any showing of an attempt to exhaustion but that is correct.
William J. Brennan, Jr.: Well, then -- I come back then, why shouldn't this case go back to the District Court for initial determination now whether he has available state remedies whether in California or North Carolina?
Louise H. Renne: Because that presupposes that if there is some sort of habeas corpus jurisdiction in the District Court of California, Your Honor and we're unwilling, we don’t believe that that’s the correct law. We think that it may be that this inmate has a remedy in a North Carolina courts. If what he is after is to challenge his North Carolina conviction he ought to attempt to seek relief in the North Carolina state courts. That's our position and we think that there's been no showing that hes attempted to do that. But we don't think there is presently available federal habeas corpus relief. I'd like to make clear too in response to some of the other questions that were asked that on the strike, we will not hold a man one day longer on the strength of a detainer. If a man's conviction has expired, a responding state must come into California to seek and obtain an extradition warrant. The prisoner can waive extradition and that's a different matter. But if hasn't, we will release a man only pursuant to extradition. In the parole situation, there are two separate ways that a man might be paroled. If the Adult Authority which is our Paroling Agency in California believes this man has totally satisfied -- is sought ready for parole, we will release the man subject to hold which means that we will notify the other state and the other state has to come in with an extradition in warrant. If we don't believe the man is ready yet for parole but nevertheless we know he has a conviction or a charge in another state and it's quite clear that the others seem to be clear that the other state wishes to obtain custody which they can do under extradition, we may put it as a special condition of parole that is the protocol. Now, that other state doesn't come in with extradition warrant or the prisoner doesn't waive extradition, then we may reconsider whether the man ought to be on parole. But that's reconsideration under the California sentence only. We respectfully submit that --
Speaker: Pardon, could I ask you one question? Assuming jurisdiction here for the moment, what do you think about the Court of Appeals suggestion that if it came down to the question of the new witnesses that 1404 (1) transfer and the 1408 would be available?
Louise H. Renne: Well, Your Honor as I recall Section 1404 (a), that statute -- transfers statute says that the case may be transferred to an action where it might have been brought. It is our position that this case could not have been brought in another forum. Now, it is true Word v. North Carolina, the Fourth Circuit opinion decided that the sentencing court wasn’t appropriate for him in a case of this kind. But it's really fortuitous that in both cases North Carolina conviction should be involved. In any other circuit this wouldn't be the case, the other reason case being the Third Circuit case and then Scoten versus Pennsylvania where the Third Circuit held that New Jersey prisoners couldn’t challenge future Pennsylvania sentences in a Pennsylvania court.
Speaker: Have you looked into the North Carolina post-conviction remedy statute?
Louise H. Renne: Well I have read it, Your Honor.
Potter Stewart: It seems to be applicable only to those imprisoned in North Carolina, would you agree with that?
Louise H. Renne: In the face of it, Your Honor. That does seem to be the case but it might be that in view that the North Carolina legislature would be wiling to change his mind. It might be that if the proper case ever rose on North Carolina that there would be some sort of reading of the North Carolina statute to encompass a case of this kind. There's never been that kind of attempt we’re aware of.
Warren E. Burger: That brings us back to the exhaustion point that Mr. Justice Brennan was raising.
Louise H. Renne: Well, it is a kind -- excuse me.
Warren E. Burger: That he has an obligation to try to see if the North Carolina procedures will reach him?
Louise H. Renne: That it is a kind of exhaustion Your Honor as we said -- as I understand exhaustion in the technical sense. It does presuppose some sort of present habeas corpus sought relief. Where unwilling, we don't think the law requires that. We do think as far as the equities of the situation are concerned that the prisoner ought to make an attempt in North Carolina to get some sort of relief there.
Warren E. Burger: Thank you for your submission Mrs. Renne. Thank you Mr. Cumming, you were appointed by the Court. We want to thank you for your assistance to the Court and of course assistance to the petitioner. The case is submitted.