Gerald D. Norris v. The State of Georgia

response a na filed directed League, Atty. Richard N. Asst. Gen. of He Court. admitted (Rufus Edmisten, L. North Carolina status had been Carolina, adversely of North Atty. Gen. on brief), affected detainers, interstate appellants. for action, asserted so far as it Ariail, Columbia, Robert M. N. C. sought dismissal of pending charges [Court-appointed], appellee. for. grounds, trial should WINTER, Before RUSSELL brought in the federal district courts FIELD, Judges. Circuit Georgia and Despite Louisiana. a refer- “respondents” ence the beginning RUSSELL, Judge: DONALD Circuit response, of his is obvious Norris, D. Gerald a North Carolina Attorney General’s return was made petition filed a for a writ prisoner, of only on behalf of himself as the sole corpus in the District Court person to whom the Court’s Order was Western District of North Carolina directed, throughout his answer he seeking dismissal of detainers lodged used singular “respon- term him the States Georgia against of. At no dent.” time thereafter did the The and Louisiana. detainers were North Carolina Attorney pur- charges criminal pending based port represent the States of Georgia petitioner. those States and Louisiana. petition named in the were defendants prison Warden Subsequent to the North Carolina petitioner, having Su- General’s response the District of Combined Records filed pervisor holding order it had Department Correc- North Carolina the cause of action to Carolina, tion, of North both States determine the validity of the crimi petition, charges Louisiana. In his Georgia pending nal in the foreign juris- upon which the detainers were dictions Louisiana made response no based, given as well the effect to be following mailing of copy in connection with peti did, detainers however, such order. Court’s file as a priso response status denying jurisdic tioner’s a limited It this order with a ner.1 concluded tion Court. It asked dismissal of respondents, Rule to the proceedings directed which the for want proper servi respondent ce,3 presumably included sovereign and because of its immu States, why to show cause the unnamed nity pleaded to suit.4 It also authorities of “prosecuting proper State party permanently Louisiana” should not be not, itself, since it did file enjoined prosecuting and barred detainers —that function belonging petitioner particular criminal that State.5 It also charges. Copies peti the order and petitioner asserted that had not com tion procedures were with plied mailed to the Attorneys of the Inter Georgia of Agreement General and Louisiana. This on Detainers Act mailing represented only attempt by the failing request to direct his for final dis of or way process notice service of of the position charges to prose both the personam cuting acquire jurisdiction over the official and the appropriate Georgia of and Louisiana.2 prosecuting States of jurisdiction.6 the officer’s Georgia Dept. (D.C.N.C.1973), Treasury (1945), 1. Norris v. State of Ford Co. v. of 323 U.S. F.Supp. 459, 468, 347, 389; Hagood 1200. 65 S.Ct. 357 89 L.Ed. v. (1886), 52, 71, 608, 117 Southern U.S. 6 S.Ct. mailing of Attorneys 2. The to the 805; Regents University 29 L.Ed. Board of of Georgia and General of Louisiana could not (D.C.Neb.1974), of Nebraska Dawes effective, constitute an extraterritorial service 1190, F.Supp. 1193. process 4(e), as described of in Rule F.R.Civ.P. may suggested It be that the 4(e) action could be Rule authorizes federal district court against prosecuting as treated one officers effect a court ordered method of service on Georgia in the States of and Louisiana parties and found outside the state when thereby avoid the bar of the Eleventh statutory authority Amend- doing is there direct so. But, unfortunately argument, ment. for this specific Absent such authorization federal parties are those officers not named statute, and there authority has the court no “blanket any upon has never been them. It is personal an enter order substituted or serv- Attorneys true that notice was mailed to the sitting.” ice outside of state in which it is Georgia (after General of Louisiana and Wright Miller, & and Federal Practice Proce- jurisdiction Court had resolved issue 1117, See, also, of (1969). p. § dure Central subject suit), over matter of the but Utility this Operating Co. Workers of America give personal jurisdiction would not 245, Court (4th 491 F.2d officials, authority of those since there was no response 40-209, pre- 3. The cited § Ga.Code process juris- for such service of outside the scribing any proceeding against diction of the State of Carolina. See upon the State be must served the Governor. 2, Moreover, supra. argument note would requirement 4(d)(6), This is also the of Rule presuppose Attorney the State F.R.Civ.P. prosecutions State, presump- controls many might tion that is not in with accord rule in It well to add that the District prosecutions jurisdiction states where the of entirely control treated the issue Court subject Attorney vested the local District in terms of matter. At Solic- no time did it Manifestly, argued question per- it itor. cannot be person- address the prosecutors sonal over these Georgia local am over the defendants and Louisi- They so, was ever had. were neither Had it done named as ana. should have- become parties any given against nor was form notice the suit them. obvious two those States ground This would be additional in the federal court of invali- North Carolina was so * * * dating so “palpably much the order of the in violation of District Elev- [the ” * * * enjoin (Scully the States of Amendment v. Bird enth] (1908), prosecution 481, 486, 597, from further 209 U.S. 28 S.Ct. petitioner. 899) L.Ed. District Court should have proceedings dismissed out of hand the 2^602, VI, XI, par. § 5. See Ga.Code Art. § Attorney those States. Nor could the seq. et § 24-2901 authority General of North Carolina have had 6. See § Ga.Code 77-504b. immunity to waive the constitutional from suit by any part. States those action on his this the District Court facts of response request with a its It concluded its geographic capacity, no alternative, plea to assuming boundaries, denied, power its order —a to enforce Court was the valid exercise of in upon dependent Northern venue change of for a point At no jurisdiction. in its This motion was Georgia. District the District Court indicate did General of orders by the submitted presumed which it under disposition without oral ar- circumstances Georgia for personam jurisdiction acquired have gument. States order, In its final District Court prosecuting officials. In as their summarily dismissed the State of Geor- “jurisdiction” serting motions, gia’s directed North Caroli- validity the pending attack respondents petition- redetermine na charges, the District in criminal status without refer- er’s institutional v. 30th relied on Braden Judicial stead and permanently detainer ence to Ky. Court of Circuit restrained Louisiana au- Braden, 35 L.Ed.2d 443. prosecuting petitioner thorities facts of ap contrast in stark charges the detainers. an Alabama who involved peal, below, For the reasons set out we affirm Kentucky of a de attacked of that order as much eliminates criminal pending charges based on tainer impact of the peti- adverse detainers on writ of for a habeas cor by petitioning status, institutional tioner’s reverse federal of Ken pus in the portion barring Georgia that of the order demanding state. tucky, But the from prosecuting petition- and Louisiana Kentucky capacity District Court’s en to charges upon the untried er on which the questioned for, its order was force were based. detainers noted, expressly “respon the Court within properly served” was dent to law is too well settled Kentucky, District of which was Western permit dispute proposition personal jurisdiction for purp his domicile district state or a federal dealt only Braden Thus with the oses.8 may by confinement entertain District Court’s of the question exercise corpus prisoner’s challenge to habeas jurisdiction subject imposed matter effects on the conditions of the adverse language of the federal habeas by the resulting filing from the his confinement statute, 2241(a), 28 corpus § U.S.C. re foreign George detainer. Nelson v. of a petitioner custody” to be “in quiring 224, 1963, (1970), jurisdiction issuing within Thus, ap in the L.Ed.2d By holding that the state court. detain subject had peal, the District both petitioner ing the in immediate confine jurisdiction authority and the matter agent acted as an for the ment demand personam jurisdiction of in to di reason detainer, filed the ing state way North rect Carolina officials appli avoided “slavish Braden Court injunctive give relief affirmative rule of Ahrens of the v. Clark cation” to the no effect 188, 1443, 335 U.S. far as so status detainers would have required L.Ed. prisoner Carolina a North petitioner to file in the state of his concerned.7 satisfy confinement statutory requirements however, relating think, to sub challenge We e., the re underlying charges ject matter —i. prisoner be footing quirement a different under in custo- for stands privileges found, properly other for institutional which he The District Court as the eligible conceded, been had not the have detainers Carolina North lodged against given him. Carolina been North authorities express consideration and Loui- determining petitioner’s siana detainers eli- 8. 410 U.S. at 93 S.Ct. 1123. honor-grade gibility parole, custody jurisdiction. the court’s North dy By duty owes Carolina no to defend fiction, agency authority. employing duty the Dis- His loyalty is demanding exclusively Courts as well as Virginia. trict While he confining state were free expected to exercise would be notify corpus” subject “habeas or of the pendency concurrent Carolina action, jurisdiction. matter But the he would not expected more, Court did to do personam jurisdiction, with practical not deal for the action in every that was not in since issue. substantive sense is one officials, or no one of employed While Braden thus agen whom suable in his capacity official cy purposes fiction for of fulfilling the subject in Virginia.” custody” requirement “in of the habeas Williams v. Commonwealth of statute, so as support subject matter Pennsylvania (D.C.Mo.1970), F.Supp. jurisdiction, that decision did not hold 1261, 1263 —6 4.10 immediate custodian becomes agent “an purposes of service simply * * * The mere fact that the District recognizing the existence of of North Carolina had both sub state’s intent to secure [another] of a ject matter and personam now in jurisdic another adjudicate impact of a detainer on tion,” as to so confer personam juris prisoner’s status in North Carolina (D.C.Ga. diction. Lawrence v. Blackwell justify did not it in attempting to exer 1969), F.Supp. 708, 711 (emphasis cise pass added).9 To employ an agency theory power of the States of purpose for the of establishing person- Georgia and try Louisiana to peti jurisdiction is a result Braden never am tioner offenses committed in those contemplated. As we observed in Word A States. fundamental distinction exists (4th State between an attack on the validity of a 406 F.2d 357: speedy detainer on grounds trial “ * * * action in a district an attack on the effect of a detainer on [A]n grounds. state of court in the detention would trial The former is an jurisdictional problems with as on the be met assault detainer’s underlying * * * practical as charges difficulties well criminal or conviction while the * * petitions *. In their in the deals with the latter adverse impact cre Virginia, [petition- Eastern District of the ated immediate impo custodian’s respondents special named as the the sition of a “form of custody” ers] prisoner of North and one of Carolina as a result State of the filing of officials, enforcement neither of the detainer. The validity law of the detain- could be served with in which er addresses itself to matters of concern properly state; actions were Virginia. The in the demanding given the effect jurisdiction. want of dismissed for If to a detainer addresses itself to matters Virginia warden had been the in of concern the confining state. This respondent, named there would remain difference long justifica has served as problem. jurisdictional a While he is tion for courts develop special proce acting holding for North Carolina in for dealing dures with chal detainers, prisoners lenges validity these under the he of a detainer as approvingly 9. Cited in because the North Carolina warden was never v. McEachern Hender 694, 1973), (5th 485 F.2d representative Cir. served with the son in his capacity alleged agent as an of the States of Georgia minimum, 10. Even were we to assume that the States of and Louisiana or otherwise. At a proc- were amenable to on the service immediate custodian agent demanding on the warden ess acting North Carolina an as a condition for state would be process, agent precedent any of as their for service claim under an personam jurisdiction agency theory of in Court’s exercise for the exercise of personam justification. jurisdiction without This is so would still be over and Louisiana. forum, either neither ob- contradistinguished attack on nor obviated the this distinction See, adverse effect. literated g., e. detainer’s' necessity (485 for different Henderson, practical v. supra McEachern prisoner chal- 694); (10th accorded to F.2d treatment lenges Bedwell v. Harris 122; validity foreign 1971), of detain- 451 F.2d Baity v. Ciccone 552; those F.Supp. based on distinctions. (D.C.Mo.1974),379 ers Weiss v. (485 (D.C.Ga.1969), Henderson, F.Supp. supra v. McEachern Blackwell 360; (D.C.Ga. 696); Baity Ciccone, supra v. Blackwell v. F.2d Lawrence 708; 556). F.Supp. F.Supp. v. Pollard State 470, 197 Ga.App. (1973), 128 S.E.2d comity Principles federal supra, gave frank ism command that the Court restrain it George, Nelson petitioner’s only complaint and differ over recognition to this distinction self a courts of There California the federal district treatment. ence subject refused to exercise have both matter District jurisdiction, wit, prisoner’s over a California conviction adverse effects the de on North Carolina release attack Circuit,11due the conditions of his The Ninth tainers on confine and detainer. prisoner. intervening deci as North measure to the Carolina large ment connection, Supreme Court in Peyton may adjudge can sion validity only Rowe reversed, holding they L.Ed.2d charges form a basis for juris Court had District confinement North the California conditions prisoner’s peti Carolina, to entertain the validity but not of those diction challenging both charges prosecution basis in the tion the effect judgment and The sit States Louisiana. analogous custodial detainer on uation to that involved in carefully worded In its on a local sentence an attack claimed to classification. holding, Supreme unconstitutionally been Court affirmed influenced have Appeals of the Court an uncounseled conviction in another judgment “jurisdiction it found Some courts have held the extent state. sentencing respon can and consider should decide District foreign conviction respect impact whether was in with claims dent’s ** reject By uncounseled, because it was valid of the detainer holding Circuit’s rea so emphasize the Ninth those authorities ing sub silentio while the sentencing exercise court may soning custodian, acting pass of its own sentence purposes validity California Carolina, ju foreign conviction, conferred its “ac agent doing] will District so standing the California tion leave [in risdiction itself, both validi challenges foreign to the state conviction” Court detainer, and, prisoner the the Su if the wishes of invalidate effect and ty conviction, specifically pre foreign he must by in Nelson the do so preme foreign jurisdiction. inherent in the resort distinctions intact served Braden, although 1973), (5th challenges. Cir. v. Craig Beto 458 F.2d two the matter subject 1134.13 establishing concurrent (9th 1969), F.2d George upon Cir. by v. Nelson officials should not be called 11. the prisoners to make a determination of delay. of a reasonableness state’s The hear- (emphasis at U.S. at 12. 399 ing will consider the restrictions im- added). posed prison at the federal under the state (310 Blackwell, supra also, See, v. Weiss detainer, underlying state criminal 363): F.Supp. at charges. (As charges, to these pursue if hearing decide must will his this Court remedies in state “At the good-faith diligent, speedy ef- secure a trial a or to made reverse has con- the state by petitioner Prison bring passage trial. viction tainted of an fort unrea- a on the supra, presented detainers Ciccone, conditions of his con- Baity v. ap in this and posed enjoin finement the demanding similar problem and, prosecuting our the cor from opinion, in reached states him on the crim- peal prisoner-petition charges underlying There the result. inal rect detainers. prisoner’s rejecting within the er, claim confined relief, Court, sought injunctive a District broad the Court Missouri held enjoin 357): (507 his feder F.2d at habeas writ relinquishing his custo al custodian “The granted issue and the relief in authorities to be on Colorado tried tody proceeding properly have criminal charges. He Colorado pending limited to elimination of the been al- grounds for the writ’s is asserted leged punitive consequences which right to speedy of his denial suance petitioner with in day-to-day his abide Characterizing the Colorado. trial imprisonment as a federal result challenge validity as a suit lodged against the detainers him detainer, Colorado are based which state criminal concluded:14 lying charges pending dormant his re- “ * * * lease. possess ju- order to [I]n

lenge risdiction missed. to sessing rect finement writ am, grant there to that to dismiss to an untried criminal in a detainer is court must relief, which However, a federal district simply has no state in a is power effect which state and district of con- no pending case way to direct in possess the power involving pending would entail based, whom can di- charge enforcing any might charge charges, person- a chal- be dis- federal officer be is- pos- remedy presented, trary, manding charges.” the outer prompt ble federal interference with state “ * their criminal ^[*] charges] Without ** Hi states’] limits outright [To would be an case is jurisdictionally District Court reached expressing ^[*] of its grant him the severe judicial enforcement resolution laws. On the con- dismissal on the ^[*] power jfc unjustifia- [the to coax opinion ^[*] de- sued. merits trial federal the detainer issued and in which the ing.” “Clearly, the exercise of the state and district consider ^{[*] [*]} criminal challenge, ^[*] corpus, charge ^[*] must from which i, ^[*] means of pend- made ^[*] forums which lenge hold hern courts claims pending Wingo v. conformity Henderson, supra (485 charges they Baity, demanding the petitioner relate to the charges are with the McEac states. federal district Louisiana, appropriate rulings may F.2d chal we The Eighth adopted 696); (5th Circuit has since Reed v. Henderson Judge reasoning 485, 486; Becker’s Baity Ciccone, af- F.2d Baity su firming earlier, opinion unreported (379 F.Supp. 552); pra Williams Com reaching the same Pennsylvania, supra result under identical monwealth of (8th F.Supp. 1264). particular circumstances. And this is Wingo v. Ciccone 1974), 507 354. action, F.2d In a ly Cir. in case so Wingo true where prisoner confined in Georgia federal Missouri as the far States of and Louisi sought speedy grounds trial concerned, to elimi- are ana violates the command foreign and, effects of three adverse nate Eleventh if the Amendment— 14. trial, sonable in before 379 delay at 556 and F.Supp. go Into a federal in that may relief.)” (Emphasis opinion). state to seek disregard, quire could be considered as action unnamed, purposes, the two de- prosecutors, though Carolina’s individual North view, which States, this result my in those the District Court would tainers. supported neither majority reaches is unable to enforce its decree either be directly by principles nor of sound precedent or under the Full Faith and Moreover, if because of the want administration. judicial Credit Clause of jurisdiction.15 ordered to dis- should be Carolina North personam for North Carolina’s the detainers regard ju- Accordingly, only exercise we specifically also be it should purposes, acquired by personal as was risdiction Georgia give and Louisi- not to ordered grant only only and that relief service Norris’s release date notice of ana e., capable delivering, we are i. which they require. particulars, In these the North Carolina custodian be di- dissent. respectfully I Georgia to remove the rected and Louisi- We detainers. reverse the remain- ana I. portions of the ing District Court’s order fully the two set forth are The facts Georgia to bar purporting and Louisiana court. Norris v. of the district opinions prosecuting petitioner from authorities (W.D. F.Supp. 1200 Georgia, charges State their detainers September N.C.1973); opinion of petitioner’s challenge and remand to the panel is in (unreported). Since charges to validity of those the District to the merits of Norris’s agreement they with instructions that be dis- to the extent of least prejudice claims—at without missed disregard obligation the de raising appropriate his claims in the Carolina’s Louisiana, except Georgia and mands Georgia. courts of Louisiana and repeat will for notice1—-I not possibly part, Affirmed in part. reversed in why I discuss think the district nor them eminently were conclusions cor WINTER, court’s (concurring in Judge Circuit Rather, directly I will turn rect. dissenting part): part and jurisdic the district court’s question majority, agree With the I quash Georgia tion Georgia this case discloses that record denial of consti Norris’s prosecutions Louisiana have and denied Norris’s rights. majority As the correct tutional trial, and that the district to a question jurisdiction ly perceives, correctly so properly decided and jurisdiction— is one disregard ordered Louisiana were and whether filed detainers those states. But I court because before the district properly agree that the district court cannot been on them. had obtained to order lacked give ruling Louisiana effect to that accomplished, usually Service was as it it re- cases, is in the issuance of a Ciccone, See, Miller, Wright 507 F.2d 354 & Federal Practice Procedure, Ciccone, p. (1969): Baity F.Supp. (W.D.Mo. § 1974), in which both courts indicated important “Although distinguish it pur- could be effective for detainer “notice among concepts subject juris- matter being generally. poses” without effective I diction, venue, person, over the illogical say think it that North Caro- process, kept it and service of also should be give may detainers here the usual lina subjects intimately in mind that these are gives detainers, which it effect requirements related and that ail four must give detainers should effect to the extent every (Emphasis be satisfied case.” add- giving Georgia and notice of the ed) planned Thus, release. if I date of Norris’s join majority’s holding, were to I would position majority question 1. The saying specific in that North Carolina was obliged of whether North Carolina is to meet prohibited giving effect to the “notice requirements the notice and Louisi- purposes” of the detainers. specific ana detainers is obscure. It makes no problem, Wingo mention of the but it relies on

1015 cause order from the district show court in Braden Judicial Circuit Court of Attorney General of the 484, 1123, Kentucky, U.S. S.Ct. authorities had the (1973), whose L.Ed.2d 443 which modified Word Attorney by adopting Gen- by Judge views set forth —in North Carolina. The initial show opinion Word, eral of in his separate Sobeloff 22, order was issued November cause 66, 406 F.2d at there could be little 364 — 6, 1973, April In order of hold- question Norris, if he desired to it had ing that of case question validity detainers, of the Norris had alleged a meritori- and that could seek writ of corpus only habeas action, of ous district court cause in North Carolina. This so because defendants, including Georgia directed Clark, 335 U.S. Ahrens v. Louisiana, why to show and cause 92 L.Ed. flatly held Georgia and Louisiana detainers should corpus that habeas could be sought only “why prosecut- stricken not be of in the district confinement. Word, ing authorities majority of this court sought dis not permanently Ahrens; should restrained card but in Braden the Su prosecution . . . because of preme vitality reaffirmed the .” delay . order illegal . . The did Ahrens, although it modified the Ahrens served, how it was to be provide holding permit a prisoner, confined in copies state, docket entries show that were one to seek corpus in an Attorneys mailed General of other state which lodged a detainer Carolina, Georgia Louisiana, against him in the state of his confine at the presumably ground instance of clerk ment on the former had district court. of the denied right him the to a trial. that, It is thus clear prior to Word I would custo- conclude Norris’s Braden, Norris’s only forum have in North dians Carolina—whether Carolina, place been North his of con law, representative, his warden Attor- finement. Under that state of the ney agents General—became conclude Norris could not have by re- states litigated rights, unless some fortu regarding as valid ceiving and the de- ity might he have served an official of Therefore, filed tainers those states. lodging the states the detainer who was physically present in North Carolina, of a for a writ habe- practical purposes would for have denied corpus attacking detainers, their any remedy him even case of over effects, pending and the whelming merit. proceedings out which they were is- sued, sufficed to establish Under Braden, superseded appropriate over the custodi- Word, right Norris’s is established to al authorities of all three states. corpus seek habeas in North Carolina on hand, the one or Georgia and Louisiana hand, subject, course, on the other

II. district court in North our Before decision in v.Word North Carolina to transfer case filed there Carolina, F.2d 352 Cir. and to either or Louisiana on the subsequent Supreme holding theory of forum non conveniens.2 Braden, above, 15 in Footnote clear forum will not in the ordi- 1131, says prove nary as much: case as convenient as the district lodged de- court in the State which has Nothing opinion prisoner brings in this should be taken to tainer. Where a action attacking preclude exercise concurrent habeas the district a de- confinement lodged by State, tainer another can, course, the dis- more a federal transfer suit to a claim 1404(a) of confinement. But have made trict as we convenient forum. 28 U.S.C. § [28 1016 McNally v. Hill overruling however, The concludes that he majority, possible prison- it for made in be denied full relief should sentence custody under one illogi in possible I think this ers forums. three they had not which a sentence attack cal.3 en- And it also yet begun serve. gives unquestionably Braden While in one held State petitioner a abled corpus in habeas to seek Norris lodged against him a detainer attack Louisiana, significant is and Georgia case, In such by another State. Norris require not Braden does in immedi- holding prisoner State said The Court latter states. file agent for acts as ate confinement juris- Braden, basic regard with State, (Empha- . . .. demanding 2241(a): statute, § 28 U.S.C. dictional (Citation added.) and footnote sis language literally, Read 498-99, omitted.) 93 S.Ct. at U.S. 2241(a) nothing more than requires § at 1131. issuing the writ have the court the detain but I have little doubt custodian. So authority acted as ing North Carolina the custodian can be reached long as kept He two other states. for the agent process, the court can by service them as well as for custody of Norris for jurisdiction” a writ “within issue conditions Exacerbated Carolina.4 brought be requiring were inflicted on Norris of confinement hearing the court on his before Whether or of their detainers. because claim, requiring that he be released Louisiana intended and not outright . . .. 410 their is immaterial. detainers effect 495, at at U.S. 93 S.Ct. by lodging the detainers The fact the instant Norris’s immediate In continuing and not two states had ward- was the North Carolina

custodian The North effects on Norris. one-time en, question he not that service does these not cause custodian did Carolina of North Caroli- through effects; the medium he was in effect service on him. na was was, He they reached Norris. which which, short, the states agent concept expressed Braden detainers, through lodging affected my that service on view which reinforces Norris. gave warden alone personam jurisdic- cus- Treatment of the North Carolina the district agent Louisiana. The and Louisi- todian tion over agent ana, including a fact situ- their for service of agency. In concept is one support case finds additional in Strait differing process, from the ation Laird, 341, 1693, cor- sought Braden habeas 406 U.S. S.Ct. in that There, (1972). Army re- the state from which the detainer L.Ed.2d pus servist, duty, issued, sought habeas cor- on active who was re- while Norris confinement, attending siding state school California pus there, sought corpus writ habeas said: Blaski, 1404(a) quash respective prosecutions § ]. U.S.C.A. Hoffman their and with- 1084, proceeds 4 L.Ed.2d 1254 draw their detainers if he successful- (1960). ly places. in each of those But I would as- reverse, e., majority’s holding i. transfer of a sume that under he corpus required proceed filed in the state of de- writ of habeas also in confinement, per- is also tainer to in the event that North Carolina Braden, give 410 U.S. missible. decline should effect to the withdrawal. instances, stated, many “in the Court petitioners are held will authority in which the district The North Carolina also acts as litigation agent lodged forum for the most convenient for New York has be the a con- their claims.” current commitment order with him. The va- order, however, lidity of this was not attacked. course, majority’s holding, 3. Of under the Nor- require Georgia could ris prob- Eleventh Amendment I see no discharge as a conscientious effect Norris, many lem. course military Of like records Indiana, objector. Strait’s petitioners were in commanding officer district courts circuit, throughout joined this sought respon- the writ in California Strait the states whose given he was an administrative dents contribut- where hearing. actions custody. his right sustained his ed to The district court The Court properly there afforded the se pleading in California and to obtain pro to sue of his case. construction and adjudication appropriately of the merits liberal as named pointed prose- all face-to- treated defendants the out that The cuting authorities Georgia the mili- contact between Strait and Louisi- face construction place any in California. It conclud- ana. Such obviated tary took problem. say that custodian is Eleventh Amendment “to Strait’s Since ed that only Young, in Indiana—or Ex U.S. parte amenable 441, 52 L.Ed. 714 Army chooses to locate its it has been well wherever . settled Eleventh Amendment recordkeeping center . . —would bar ju- reality.” 406 does exercise of federal fiction over be to exalt enjoin risdiction state from at 1695. officers at S.Ct. carrying out unconstitutional acts. In- in In actual custodian was If Strait’s deed, in case it was said: diana, jurisdiction over him could have supreme This authority ju- [federal theory on obtained been enjoin risdiction state officers from present agents were the custodian’s carrying out unconstitutional acts] California, agents service on these arises specific provi- from the less, the custodian.5 No on was service itself, of the sions Constitution is no- me, Georgia were and Louisi it seems more fully where illustrated than in in North Carolina in the in present ana series of decisions under the Fed- By analogy, if case. service on the stant corpus eral habeas statute representative gave local Strait in some of which persons cases personam ju district California court custody of state officers for alleged risdiction, no less should service against the state have crimes been accomplish the Carolina custodian custody and dis- taken from that result for the North Carolina dis same charged by a judge, Federal court or court. trict imprisonment because was ad- judged to in violation of the Feder- to so dis- al Constitution. agency In addition to rejecting the charge has not been doubted this theory apply, that I would majority court, and it has never been supposed that the district court’s exercise asserts against there was suit over the states of by reason of serving the writ legally objectionable upon of the officers one state in grounds that the dual the Eleventh person whose was found. precludes joinder Amendment of the (Emphasis supplied.) at 167— 209 U.S. themselves, and that attempt- states 68, 28 S.Ct. 457. joinder Attorneys ed General of legal was a nulli- any problem Nor do I see about ty they prosecuting validity because are not the Attorneys of service on the Gen- charge Louisiana, of the two states in officials eral or lack of prosecuting Norris. on local prosecuting service officials. Indeed, said, concepts the Court footnote, “[t]he In a the Court also said: ‘custody’ sufficiently and ‘custodian’ are broad commanding “present” Strait’s officer is say commanding to allow us to that the officer through State; California contacts in that Indiana, operating through officers Cali- he is therefore “within reach” of the federal processing petitioner’s claim, fornia is in petition. in which Strait filed his purposes California for the limited of habeas U.S. at 345 n. 92 S.Ct. at 1695 n. 2. jurisdiction.” 345-46, 406 U.S. at an attack on its validi- courtesy was a it

Unquestionably deciding the contemplates clerk) copy ty. Braden (or its to mail district such attacks ac- venue appropriate April 6, 1973, order court’s district non cording principle of forum Attorneys General insure By recognize its failure conveniens. legal ranking officers they, as Braden, majority aspect knowledge of what states, had actual into inflexi- venue considerations freezes and the order decided court had requirements jurisdictional and de- But ble each state. entered flexibility very Braden them, stroys governors or the actual envisions. states, prosecuting or other two states, was not of the two officials I think that cur- on Norris’s necessity. Service legal in de- court be affirmed should legal necessity. It was a custodian rent clining case transfer rep- his accomplished by service on was upon or to. insist institu- Louisiana resentative, of litigation new there. tion Carolina, validity that and the change ask a venue. not for did unquestioned. is not It matters service compelling advanced no reason suit, that, responding change venue, such that denial a for that custodian did not concede Carolina dis- transfer constituted an abuse of of a agent other two for acted he cretion. states, as as for himself and North well IV. law, he the facts and Under Carolina. George, Nelson U.S. agent prosecuting offi- was 26 L.Ed.2d 578 does cials, jurisdiction and in was authorize dichotomy not that the ma- by them on him. obtained jority erects between an attack on III. effect validity detainer and the said, a detainer. I have that Braden is both a decision As I think the I think illogical; It judicial and on venue. decides distinction the lack efficiency requiring only that the district in the state two trials in the (three ju- issuing case) case in the detainer has habeas usual is validity decide the also manifest. More importantly, risdiction I think though prisoner George correctly even is not that Nelson detainer territorial Mr. court’s characterized Justice Harlan in confined concurring opinion Braden indicates his jurisdiction. the case: convenient forum in which to most validity litigate of the detainer is not I do understand from which the detain- usually the state to suggest respondent’s invariably But is not er issued. failure exhaust state remedies with true, it is when Braden respect And claim that true. California is both venue recognizes, giving constitutionally impermissible in the state of confinement. may lie conviction, effect his North Carolina improper rendered it the federal eminently logical a rule is be- Such his challenge courts consider rarely possible in the state of cause validity of the North Carolina convic- adjudicate validity of confinement he tion to extent had exhaust- liti- of the detainer without the effect ed North Carolina with re- remedies Only validity of the detainer. gating spect thereto. exceptional case where irregularity processes some claims 90 S.Ct. at 1967. Of gives the state of required confinement course Nelson an allegation that to the detainer would the the North conviction affected effect detainer not be in issue. Ordinar- confinement California the Cali- bar, any complaint case at fornia district ily, jurisdiction, to have the effect of the stems juris- detainer it did not limit about exercise of California court when diction were exhausted. I think remedies courts which construe Nelson those supporting a limitation of the exercise by a court of the state of error; are in Shelton v.

confinement Meier, sup 485 F.2d 1177 my construction.6

ports sum, process I think that service of charge

on the North Carolina official in Norris’s immediate was serv-

ice since the Norris,

North Carolina official restrained part, request their and thus was agent purposes

their of service of attacking in an action the validi-

ty reason, of their acts. For the same

Georgia and “present” Louisiana were the geographical district court. Therefore require them to

comply with its conclusion that Norris

had been denied his trials

by those states. America,

UNITED STATES of

Plaintiff-Appellee, VANDEMARK, Duane

Gerald

Defendant-Appellant. 74-2312.

No. Appeals,

United Court of States Ninth Circuit. July (argued), Howard B. Frank Diego, San

Cal., defendant-appellant. Strauss, Richard E. Asst. U. Atty. S. Cal., (argued), Diego, plaintiff- San appellee. Barker, ris’s; Dillworth as I hold F.2d the Dill- 1341 Cir. suggested which the court said worth the “exercise of receiving jurisdiction may district court state of be withheld . . . parolee, parole granted by whose reasons forum non another conveniensbut did not state, dispute power has over his habeas the district court’s to exercise physically present jurisdiction. since he was in the receiv- ing analogous state. This situation is to Nor-

Case Details

Case Name: Gerald D. Norris v. The State of Georgia

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jul 24, 1975

Citation: 522 F.2d 1006

Docket Number: 73-2313

Court Abbreviation: 4th Cir.