Nelson v. George/Dissent Douglas

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.