Respondent, who is serving a sentence under a California
conviction, was tried, convicted, and sentenced in North Carolina,
and a detainer, requested by North Carolina, was noted by
petitioner California warden. Respondent sought a writ of habeas
corpus from a Federal District Court in California, attacking his
North Carolina conviction. His application was denied, and, in his
petition for rehearing, he argued that the detainer acted as a form
of constructive custody as it adversely affected his parole
potential and the degree of security in which he was detained.
Rehearing was denied on the basis of McNally v. Hill,
293 U. S. 131
respondent appealed to the Court of Appeals. The intervening
decision in Peyton v. Rowe, 391 U. S.
, overruled McNally v. Hill,
and held that a
state prisoner serving consecutive sentences in the forum State is
"in custody" for purposes of jurisdiction for collateral attack.
The Court of Appeals held that the District Court had jurisdiction
to consider respondent's claims concerning the impact of the
1. Since the California courts, which are not required to
enforce a foreign penal judgment, have not been presented with the
question of what effect, if any, they will give the North Carolina
detainer in terms of respondent's present "custody," respondent has
not exhausted his California remedies. P. 399 U. S.
2. The Federal District Court should retain jurisdiction of the
petition for writ of habeas corpus pending respondent's application
to the California courts for appropriate relief if he establishes
his claim that the detainer interferes with relief that California
might grant in the absence of the detainer. Pp. 399 U. S.
410 F.2d 1179, affirmed.
Page 399 U. S. 225
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted the writ in this case to consider whether the
respondent, presently confined in California under a state
conviction, may utilize the federal courts in California to test
the validity of a North Carolina sentence before beginning to serve
that sentence and while under a detainer filed by North Carolina.
Respondent claims the sentence yet to be served in North Carolina
is "consecutive" under Peyton v. Rowe, 391 U. S.
(1968). However, since his petition challenges the
present effect being given the North Carolina detainer by the
California authorities, particularly with respect to granting him
parole, we have concluded that, as to that claim, respondent failed
to exhaust his state remedies, and accordingly do not reach the
question for which the writ was granted.
The record discloses that, on April 27, 1964, John Edward George
was convicted on a plea of guilty in a California court of
first-degree robbery. He began serving his sentence of five years
to life at San Quentin. [Footnote
] Following his conviction, detainers were filed in California
by the States of Kansas, Nevada, and North Carolina, on June 4, 10,
and 11, 1964, respectively.
Exercising his right under Article III(a) of the interstate
"Agreement on Detainers," [Footnote
] George requested temporary release to stand trial on the
underlying robbery charge pending in North Carolina. Accordingly,
on July 20, 1966, he was released to North Carolina authorities
Page 399 U. S. 226
and transported there to stand trial. The North Carolina trial
was held, and, on February 8, 1967, George was convicted and
sentenced to imprisonment for 12 to 15 years. The conviction was
thereafter affirmed, State v. George,
271 N.C. 438,
Following the North Carolina trial, George was returned to San
Quentin to complete service of his California sentence. On April
14, 1967, the clerk of the Gaston County Superior Court addressed a
letter to the Records Officer at San Quentin advising that George
"wanted at the termination of his imprisonment there for return
to this jurisdiction to serve the sentence imposed in the Superior
Court of Gaston County, North Carolina."
The Warden of San Quentin acknowledged the detainer, indicating
that it was "noted in our records."
George then brought a petition for habeas corpus in the United
States District Court for the Northern District of California in
which he sought to attack not his California conviction, for which
he was then incarcerated, but the North Carolina conviction for
which the detainer had been filed. The District Court denied the
application by order dated March 1, 1968, on the ground that
McNally v. Hill, 293 U. S. 131
(1934), foreclosed habeas corpus relief on the North Carolina
conviction while George was still in custody under the prior
George filed a petition for rehearing in the District Court in
which he argued that, even though he was actually serving time in a
California jail, and thus not technically serving his North
Carolina sentence, habeas corpus was not foreclosed, since the
North Carolina detainer operated as a form of constructive custody.
In support of his contention, he drew upon the language in
Arketa v. Wilson,
373 F.2d 582 (C.A. 9th Cir. 1967), to
the effect that the strict rule of McNally v. Hill
Page 399 U. S. 227
eroded by this Court's subsequent decisions in Ex parte
Hull, 312 U. S. 546
(1941), and Jones v. Cunningham, 371 U.
(1963), and that
"it appears that there are situations in which the writ can be
used to free a petitioner from a certain type of custody, rather
than from all custody."
Arketa v. Wilson, supra,
at 584. George argued that the
North Carolina warrant was "a form of custody," since it affected
his custodial classification and probability of parole on his
California sentence. [Footnote
] On March 20, 1968, the District Court denied the petition
for rehearing, and George appealed to the Court of Appeals for the
Our decision in Peyton v. Rowe
intervened. In that
case, we overruled McNally v. Hill, 293 U.
(1934), and held that a state prisoner serving
consecutive sentences in the forum state is "in custody" under each
sentence for purposes of jurisdiction for collateral attack under
28 U.S.C. § 2241(c)(3), [Footnote
] thus permitting a federal habeas corpus action to test a
future state sentence while he is serving an earlier sentence. In
Peyton v. Rowe,
the consecutive sentences were imposed by
the forum State, and the sentences were being served in that
State's prison. Unlike the case now before us, in such a
Page 399 U. S. 228
single-state situation, the challenge to the continuing vitality
of Ahrens v. Clark, 335 U. S. 188
(1948), does not arise. See Word v. North Carolina,
F.2d 352 (C.A.4th Cir.1969). [Footnote 5
As we have noted, having named the Warden of San Quentin as the
respondent in his amended petition to the Federal District Court in
California, and having had his petition refused, George sought
rehearing. In that application, George alleged that the California
authorities had imposed upon him a "form of custody" because of the
North Carolina detainer. Specifically, he alleged
Page 399 U. S. 229
that the mere presence of the detainer adversely affected the
probability of his securing parole and the degree of security in
which he was detained by state authorities. California denies that
the existence of the detainer has any consequences affecting his
parole potential or custodial status.
Since the Full Faith and Credit Clause does not require that
sister States enforce a foreign penal judgment, Huntington v.
Attrill, 146 U. S. 67
(1892); cf. Milwaukee County v. M. E. White Co.,
296 U. S. 268
296 U. S. 279
(1935), California is free to consider what effect, if any, it will
give to the North Carolina detainer in terms of George's present
"custody." [Footnote 6
the petition for rehearing raised precisely such a challenge to the
California "custody," a matter that has not yet been presented to
the California courts, we conclude that respondent George has not
yet exhausted his California remedies. See Ex parte
Royall, 117 U. S. 241
Respondent insists that the very presence of the North Carolina
detainer has, and will continue to have, an adverse impact on
California's consideration of his claim for parole. Therefore, the
United States District Court in California should retain
jurisdiction of the petition for habeas corpus relief pending
respondent's further application to the California courts for
whatever relief, if any, may be available and appropriate if he
establishes his claim that North Carolina's detainer interferes
with relief that might, in the absence of the detainer, be granted
by California. We affirm the judgment of the
Page 399 U. S. 230
Court of Appeals to the extent it finds jurisdiction in the
District Court to consider respondent's claims with respect to the
impact of the detainer if respondent elects to press those claims
after he exhausts his remedies in the California courts.
MR. JUSTICE BLACKMUN took no part in the consideration or
decision of this case.
Under California law, the sentence for first-degree robbery is
an indeterminate five years to life sentence in the discretion of
the California Adult Authority. Cal.Pen.Code § 213.
Cal.Pen.Code § 1389 (Supp. 1968).
"§ 2241. Power to grant writ."
"(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 restraint complained of is had."
"* * * *"
"(c) The writ of habeas Corpus hall not extend to a prisoner
"* * * *"
"(3) He is in custody in violation of the Constitution or laws
or treaties of the United States. . . ."
In that case, Chief Judge Haynsworth, expressing the views of
the majority of the Court of Appeals for the Fourth Circuit sitting
en banc, concluded that Ahrens v. Clark
was a venue
decision, and that the physical presence of the petitioner within
the district was not an invariable requirement if rigid adherence
to the rule would leave one in prison without an effective remedy.
The legislative history of the 1966 amendments to 28 U.S.C. §
2241(d) (1964 ed., Supp. V) suggests that Congress may have
intended to endorse and preserve the territorial rule of
to the extent that it was not altered by those
H.R.Rep. No. 1894, 89th Cong., 2d Sess.,
1-2 (1966). See also
S.Rep. No. 1502, 89th Cong., 2d Sess.
(1966). Those changes were made by Congress, of course, prior to
our decision in Peyton v. Rowe;
could not have had the multistate problem with which we are now
confronted in mind. Whether, in light of the legislative history of
§ 2241(d) and the changed circumstances brought about by Peyton
the rigor of our Ahrens
holding may be
reconsidered is an issue upon which we reserve judgment.
However, we note that prisoners under sentence of a federal
court are confronted with no such dilemma, since they may bring a
challenge at any time in the sentencing court, irrespective of
where they may be incarcerated. 28 U.S.C. § 2255. It is anomalous
that the federal statutory scheme does not contemplate affording
state prisoners that remedy. The obvious, logical, and practical
solution is an amendment to § 2241 to remedy the shortcoming that
has become apparent following the holding in Peyton v.
Sound judicial administration calls for such an
We are not here concerned with the scope of California's
ultimate duty, imposed by Art. IV, § 2, cl. 2, of the Constitution,
to extradite person wanted for trial or execution of sentence in a
sister State. We note only that, until the obligation to extradite
matures, the Full Faith and Credit Clause doe not require
California to enforce the North Carolina penal judgment in any
MR. JUSTICE HARLAN, with whom MR. JUSTICE MARSHALL joins,
I join the Court's opinion with the following observations.
First, I do not understand the Court to suggest that respondent's
failure to exhaust state remedies with respect to his claim that
California is giving a constitutionally impermissible effect to his
North Carolina conviction, rendered it improper for the federal
courts to consider his challenge to the validity of the North
Carolina conviction to the extent that he had exhausted North
Carolina remedies with respect thereto. Second, agreeing with the
reasons given by the Court for not reaching the propriety of the
Court of Appeals' resolution of respondent's challenge to the North
Carolina conviction, I would dismiss that part of the writ as
improvidently granted. Third, pending the congressional action that
the Court's opinion envisages, I think it not inappropriate to
leave undisturbed such conflicts as exist between the decision of
the Court of Appeals in the present case and decisions in other
circuits, see Word v. North Carolina,
406 F.2d 352
(C.A.4th Cir.1969); United States ex rel. Van Scoten v.
404 F.2d 767 (C.A.3d Cir.1968), respecting the
proper treatment of habeas corpus claims such as those involved in
respondent's challenge in the California courts to the validity of
his North Carolina conviction.
Page 399 U. S. 231
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.
391 U., S. 54, was decided, and in his argument for a
rehearing the prisoner sought to distinguish McNally v.
Hill, 293 U. S. 131
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
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.
Page 399 U. S. 232
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
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
Page 399 U. S. 233
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."
301 U.S. at 62.
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, 410 F.2d 1179, did not decide that only
California, not North Carolina, could pass on the merits of the
on the validity or invalidity of the North
Carolina judgment. It emphasized that there were practical
difficulties whichever forum were chosen. Id.
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. [Footnote 2/2
Page 399 U. S. 234
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.
"(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."
"(c) An applicant shall not be deemed to have exhausted the
remedies available in the courts of the State, within the meaning
of this section, if he has the right under the law of the State to
raise, by any available procedure, the question
28 U.S.C. § 1404(a); Word v. North
40 F.2d 352.
In H.R.Rep. No. 1894, 89th Cong., 2d Sess., 1-2, it is
"Section 2241 of title 28, United States Code, vets 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
). 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 ection 1404(a) of title 28, United
States Code (Hoffman v. Blaski,
363 U. S.
S.Rep. No. 1502, 89th Cong., 2d Sess. These
reports are concerned with the 1986 amendment to § 2241, which
permit 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,
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.