Nelson v. George, 399 U.S. 224 (1970)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus

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, and respondent appealed to the Court of Appeals. The intervening decision in Peyton v. Rowe, 391 U.S. 54, 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 detainer.

Held:

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. 229.

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. 229-230.

410 F.2d 1179, affirmed.