Word v. State of North Carolina, 10765

• Decision Date: 15 January 1969
• Docket Number: 11770.,11487,No. 10765,10765
• Citation: 406 F.2d 352
• Parties: Johnny F. WORD, No. 82830, Appellant, v. STATE OF NORTH CAROLINA, Appellee. James Johnnie MATTHEWS, Appellant, v. Glenn O. WOMBLE, Sheriff, Nash County, North Carolina, Appellee. James Lee WILLIAMS, Appellant, v. STATE OF NORTH CAROLINA, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

406 F.2d 352 (1969)

Johnny F. WORD, No. 82830, Appellant, v. STATE OF NORTH CAROLINA, Appellee.

James Johnnie MATTHEWS, Appellant, v. Glenn O. WOMBLE, Sheriff, Nash County, North Carolina, Appellee.

James Lee WILLIAMS, Appellant, v. STATE OF NORTH CAROLINA, Appellee.

Nos. 10765, 11487, 11770.

United States Court of Appeals Fourth Circuit.

January 15, 1969.^*

James L. Underwood (Court-assigned Counsel) for appellants.

Ralph A. White, Jr., Staff Attorney, Raleigh, N. C. (Thomas Wade Bruton, Atty. Gen., of North Carolina, on the brief), for appellee.

Before HAYNSWORTH, Chief Judge, SOBELOFF, BOREMAN, BRYAN, WINTER and CRAVEN, Circuit Judges, sitting en banc.^*

HAYNSWORTH, Chief Judge:

We have for decision the question whether, in light of Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426, federal habeas corpus provides a present remedy for a state prisoner seeking to attack, on constitutional grounds, a conviction in another state which underlies a detainer filed with his keeper. We hold that it does and that the action is properly brought in a district court in the demanding state.

I

The petitioner in each of these three cases is presently serving a sentence imposed upon him in Virginia. Those sentences are not challenged. Each of them has also been convicted of an offense in North Carolina, and North Carolina has lodged detainers with Virginia prison officials. Each asserts constitutional infirmity in his North Carolina conviction, and the allegations, if proven, would entitle each to relief. The first question then is whether habeas corpus furnishes an available remedy for adjudication of those claims now, or whether each prisoner has no remedy until he shall have fully served his Virginia sentence and shall have been delivered into the physical custody of a North Carolina warden for service of the challenged sentence.

In 1965, the petitioner, Williams, was convicted of an offense in Virginia, and a sentence of seventeen years was imposed upon him. Five months later, he was tried and convicted in North Carolina on charges of armed robbery, and a sentence of twenty-five years was imposed upon him. He was then returned to Virginia for service of the Virginia sentence, and a detainer was lodged with the Virginia authorities. Under the administrative regulations governing the operation of Virginia's prisons,¹ the fact that the detainer has been filed must be taken into account in determining the level of custody in which he will be held. It makes him ineligible ever to attain the status of a trusty or to be assigned to a job where the level of custody is low.

Unquestionably, when he becomes eligible for parole, the detainer will have an adverse effect upon his chances for conditional release.

The petitioners, Word and Matthews, are in comparable situations, the differences going only to the gravity of the offenses of which each was convicted and the length of their sentences. The detainers require their relatively close confinement while in prison in Virginia and have, or will have, an adverse effect upon their consideration for parole.

In Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426, the Supreme Court canvassed some of the reasons strongly militating against artificial barriers to early adjudication of claims of constitutional invalidity of convictions, as had we. Rowe v. Peyton, 4 Cir., 383 F.2d 709. If Williams must wait the ten or fifteen years remaining before Virginia delivers him to North Carolina for service of the North Carolina sentence, witnesses essential to the establishment, or refutation, of the factual bases of his claim may be unavailable because of death, illness or loss of memory. No one's recollection will then be as reliable as it now is, and many will have forgotten all they once knew about it. If there is now no transcript of the 1966 North Carolina trial proceedings, it is quite likely that one could not be produced ten or fifteen years hence, for reporters die and retire, or lose or destroy their notes of old proceedings. If a retrial of Williams were found to be necessary some ten to fifteen years from now, it is not unlikely that North Carolina would find reprosecution impossible because of the unavailability of witnesses or their faded memories. Nor, if his constitutional claim is provable, should Williams be required to wait until he begins service of the invalid sentence to commence his judicial attack upon it. With all of the new and magnified problems caused by long delay in hearing his claims, he could languish in prison for years before the invalidity of his detention was established.

Word, on the other hand, has only five months to serve in North Carolina. With time off for good behavior, the sentence will expire in approximately four months. If he must wait until he begins service of that sentence to commence a proceeding attacking it, he will have served a substantial part of it before he could reasonably hope to obtain a hearing in the state trial court. If the state trial court did not grant a prompt hearing, or if, after a hearing it denied relief, Word could not possibly complete exhaustion of his state remedies before seeking federal habeas corpus. Unless he has some remedy now, he probably will never have access to a federal court and he will serve all or a substantial part of his sentence before he can expect initial state consideration of its validity.

In short, there are present in the context of these cases all of the reasons greatly favoring an early resolution of such claims which exist in the context of an attack upon a consecutive or successive sentence.

In Peyton v. Rowe, the Supreme Court broadly discarded the prematurity doctrine of McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238. In holding federal habeas corpus available to attack a consecutive or successive sentence which the prisoner has not yet begun to serve, it said, "* * * a principal aim of the writ is to provide for swift judicial review of alleged unlawful restraints on liberty. * * * Common sense dictates that prisoners seeking habeas corpus relief after exhausting state remedies should be able to do so at the earliest practicable time."² It again rejected the notion that the prisoner's immediate release is the sole office of the writ, and sanctioned a liberal interpretation of §§ 2241(c) (3) and 2243³ to the end that appropriate remedial orders may issue, without unnecessary delay, whenever a constitutional claim is established with a resultant effect upon the nature or duration of the prisoner's custody.

In the Peyton v. Rowe situation, of course, the consecutive or successive sentences were imposed by the same sovereign. A realistic appraisal led ineluctably to the conclusion that the warden held the prisoner for service of all of his sentences. Here the successive sentences sought to be attacked were imposed by another sovereign, but the difference is not one of legal or practical significance. The Virginia warden's authority to detain each of these prisoners is clearly dual. When the authorization of the Virginia commitment is terminated by full sentence service or by pardon or parole, the Virginia warden will continue to detain the prisoner under the authorization of the detainer. The prisoner has no hope of release until both authorizations are ended, for if either is withdrawn or expires, the warden will continue to hold him under the other. Moreover, the presence of the detainer requires the warden to hold the prisoner with a heavier hand than the Virginia commitment alone demands. The duality of the warden's authority has an immediate, practical consequence. Now or later it will have other reflections in parole consideration.

It thus seems clear to us that each of these prisoners is in custody, within the meaning of § 2241(c) (3), under the North Carolina detainer as well as under the Virginia commitment. The First Circuit has recently held that a state prisoner was "in custody" under a federal detainer, the validity of which he could attack in a § 2255 proceeding. Desmond v. United States Board of Parole, 1 Cir., 397 F.2d 386. That decision reinforces our conclusion. The desirability of this result is recognized by the Advisory Committee on Sentencing and Review, of which Judge Sobeloff is Chairman, of the American Bar Association Project on Minimum Standards for Criminal Justice in the tentative draft of its report on Standards Relating to Post-Conviction Remedies. See the Commentary to § 23 on pages 44-45.

II

Williams sought relief in the United States District Court for the Eastern District of North Carolina, while Word and Matthews brought their actions in the Eastern District of Virginia. The former we think proper; the latter, where permissible, infrequently preferable.

The custody of the Virginia warden under the authority of the detainer is North Carolina's. He holds the prisoner for North Carolina, not for Virginia. It is a North Carolina judgment that is under attack, and North Carolina's Attorney General, not Virginia's must defend it. The records and witnesses, with the exception of the prisoner, are in North Carolina. Virginia is unconcerned with the outcome, while North Carolina has much at stake. Such considerations require a look far beyond identification of the immediate physical custodian.

It is not unfair to the prisoner to require that he seek relief in the district court for a district within the sentencing state. If the state court provides an effective remedy,⁴ it surely must be exhausted under the requirements of 28 U.S.C.A. § 2254(b) in the courts of that state, here North Carolina, not in the courts of that state in which he is now physically present. If there are factual issues and the state court holds a full and fair hearing, no evidentiary hearing will be necessary in the district court. If the state court does not grant such a hearing, it is no greater burden on the prisoner to require him to proceed...