Gerald D. Norris v. The State of Georgia

522 F.2d 1006

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 24, 1975
• Docket: 73-2313
• Status: Published

Opinions

DONALD RUSSELL, Circuit Judge:

Gerald D. Norris, a North Carolina prisoner, filed a petition for a writ of habeas corpus in the District Court for the Western District of North Carolina seeking dismissal of detainers lodged against him by the States of. Georgia and Louisiana. The detainers were based on criminal charges pending in those States against the petitioner. The defendants named in the petition were the Warden of North Carolina prison having custody of the petitioner, the Supervisor of Combined Records for the North Carolina Department of Correction, and the States of North Carolina, Georgia and Louisiana. In his petition, Norris alleged that the detainers adversely affected his status in the North Carolina prison. He also sought dismissal of (and an injunction against the prosecution of) the underlying criminal charges pending in Georgia and Louisiana because of the claimed failure of those States to afford him a speedy trial as guaranteed under the Sixth Amendment.

With the filing of the petition, the District Court issued an Order directed to the Attorney General of North Carolina requiring him “to answer and show cause why the relief prayed for in the petition ought not to be granted.” The Order made no reference to any respondent other than the North Carolina Attorney General. No service — or even an attempt at service — of process on the other named respondents in the proceedings was made. All that was done by way of purported service of process was the mailing of the Court’s Order and a copy of the petition to the Attorney General of North Carolina.

The Attorney General of North Carolina filed a response as directed by the Court. He admitted that petitioner’s status as a prisoner had been adversely affected by the interstate detainers, but asserted that the action, so far as it sought dismissal of the pending charges on speedy trial grounds, should be brought in the federal district courts in Georgia and Louisiana. Despite a reference to “respondents” at the beginning of his response, it is obvious that the Attorney General’s return was made only on behalf of himself as the sole person to whom the Court’s Order was directed, for throughout his answer he used only the singular term “respondent.” At no time thereafter did the North Carolina Attorney General purport to represent the States of Georgia and Louisiana.

Subsequent to the North Carolina Attorney General’s response the District Court filed an order holding that it had jurisdiction over the cause of action to determine both the validity of the criminal charges pending in the foreign jurisdictions upon which the detainers were based, as well as the effect to be given such detainers in connection with petitioner’s status as a North Carolina prisoner.¹ It concluded this order with a Rule directed to the respondents, which presumably included the respondent States, to show cause why the unnamed “prosecuting authorities of Georgia and Louisiana” should not be permanently enjoined and barred from prosecuting petitioner on the underlying criminal charges. Copies of the order and petition were mailed to the Attorneys General of Georgia and Louisiana. This mailing represented the only attempt by way of notice or service of process to acquire in personam jurisdiction over the States of Georgia and Louisiana.²

Louisiana made no response following the mailing of the copy of the Court’s order. Georgia did, however, file a limited response denying the jurisdiction of the Court. It asked dismissal of the proceedings for want of proper service,³ and because of its sovereign immunity to suit.⁴ It also pleaded that the State of Georgia was not a proper party to the petition since it did not, itself, file detainers — that function belonging to a particular court of that State.⁵ It also asserted that the petitioner had not complied with the procedures of the Interstate Agreement on Detainers Act by failing to direct his request for final disposition of the charges to both the prosecuting official and the appropriate court of the prosecuting officer’s jurisdiction.⁶ It concluded its response with a request in the alternative, assuming its plea to the jurisdiction of the Court was denied, for a change of venue to the Northern District of Georgia. This motion was submitted by the Attorney General of Georgia for disposition without oral argument.

In its final order, the District Court summarily dismissed the State of Georgia’s motions, directed the North Carolina respondents to redetermine petitioner’s institutional status without reference to any detainer and permanently restrained the Georgia and Louisiana authorities from prosecuting petitioner on the charges underlying the detainers. For the reasons set out below, we affirm as much of that order as eliminates the adverse impact of the detainers on petitioner’s institutional status, but reverse that portion of the order barring Georgia and Louisiana from prosecuting petitioner on the untried charges upon which the detainers were based.

The law is too well settled to permit dispute over the proposition that a federal district court in the state or district of confinement may entertain by habeas corpus a prisoner’s challenge to the adverse effects on the conditions of his confinement resulting from the filing of a foreign detainer. Nelson v. George (1970), 399 U.S. 224, 90 S.Ct. 1963, 26 L.Ed.2d 578. Thus, in the instant appeal, the District Court had both subject matter jurisdiction and the authority by reason of in personam jurisdiction to direct the North Carolina officials by way of affirmative injunctive relief to give no effect to the Georgia and Louisiana detainers so far as petitioner’s status as a North Carolina prisoner was concerned.⁷

We think, however, that the challenge to the validity of the underlying charges stands on a different footing for under the facts of this case, the District Court had no capacity, within its geographic boundaries, to enforce its order — a power dependent upon the valid exercise of in personam jurisdiction. At no point in its orders did the District Court indicate the circumstances under which it presumed to have acquired in personam jurisdiction of the States of Georgia and Louisiana and their prosecuting officials. In asserting “jurisdiction” over petitioner’s attack on the validity of the pending criminal charges, the District Court instead relied on Braden v. 30th Judicial Circuit Court of Ky. (1973), 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443. Braden, in stark contrast to the facts of this appeal, involved an Alabama prisoner who attacked the validity of a Kentucky detainer based on pending criminal charges by petitioning for a writ of habeas corpus in the federal district court of Kentucky, the demanding state. But the Kentucky District Court’s capacity to enforce its order was not questioned for, as the Court expressly noted, the “respondent was properly served” within the Western District of Kentucky, which was his domicile for personal jurisdiction purposes.⁸ Thus Braden dealt only with the question of the District Court’s exercise of subject matter jurisdiction as imposed by the language of the federal habeas corpus statute, 28 U.S.C. § 2241(a), requiring the petitioner to be “in custody” within the jurisdiction of the issuing court. By holding that the state detaining the petitioner in immediate confinement acted as an agent for the demanding state that filed the detainer, the Braden Court avoided the “slavish application” of the rule of Ahrens v. Clark (1948), 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898, which would have required the petitioner to file in the state of his confinement to satisfy the habeas corpus statutory requirements relating to subject matter jurisdiction — i. e., the requirement that the prisoner be in custody within the court’s jurisdiction. By employing this agency fiction, the District Courts in the demanding as well as the confining state were free to exercise concurrent “habeas corpus” or subject matter jurisdiction. But the Court did not deal with in personam jurisdiction, since that was not in issue.

While Braden thus employed the agency fiction for purposes of fulfilling the “in custody” requirement of the habeas statute, so as to support subject matter jurisdiction, that decision did not hold that the immediate custodian becomes “an agent for purposes of service simply by recognizing the existence of * * * [another] state’s intent to secure custody of a prisoner now in another jurisdiction,” so as to confer in personam jurisdiction. Lawrence v. Blackwell (D.C.Ga. 1969), 298 F.Supp. 708, 711 (emphasis added).⁹ To employ an agency theory for the purpose of establishing in person-am jurisdiction is a result Braden never contemplated. As we observed in Word v. State of North Carolina (4th Cir. 1969), 406 F.2d 352, 357:

“ * * * [A]n action in a district court in the state of detention would be met with jurisdictional problems as well as * * * practical difficulties * * *. In their petitions in the Eastern District of Virginia, [petitioners] named as the respondents the State of North Carolina and one of its law enforcement officials, neither of which could be served with process in Virginia. The actions were properly dismissed for want of jurisdiction. If the Virginia warden had been the named respondent, there would remain a jurisdictional problem. While he is acting for North Carolina in holding these prisoners under the detainers, he owes North Carolina no duty to defend his authority. His duty of loyalty is exclusively to Virginia. While he would be expected to notify North Carolina of the pendency of the action, he would not be expected to do more, for the action in every practical and substantive sense is one against North Carolina or its officials, no one of whom is suable in his official capacity or subject to process in Virginia.”

See also Williams v. Commonwealth of Pennsylvania (D.C.Mo.1970), 315 F.Supp. 1261, 1263—64.¹⁰

The mere fact that the District Court of North Carolina had both subject matter and in personam jurisdiction to adjudicate the impact of a detainer on the prisoner’s status in North Carolina did not justify it in attempting to exercise in personam jurisdiction to pass on the right and power of the States of Georgia and Louisiana to try the petitioner for offenses committed in those States. A fundamental distinction exists between an attack on the validity of a detainer on speedy trial grounds and an attack on the effect of a detainer on speedy trial grounds. The former is an assault on the detainer’s underlying criminal charges or conviction while the latter deals with the adverse impact created by the immediate custodian’s imposition of a special “form of custody” on the prisoner as a result of the filing of the detainer. The validity of the detain-er addresses itself to matters of concern in the demanding state; the effect given to a detainer addresses itself to matters of concern in the confining state. This difference has long served as justification for courts to develop special procedures for dealing with prisoner challenges to the validity of a detainer as contradistinguished to an attack on the detainer’s' adverse effect. See, e. g., McEachern v. Henderson, supra (485 F.2d 694); Bedwell v. Harris (10th Cir. 1971), 451 F.2d 122; Baity v. Ciccone (D.C.Mo.1974), 379 F.Supp. 552; Weiss v. Blackwell (D.C.Ga.1969), 310 F.Supp. 360; Lawrence v. Blackwell (D.C.Ga. 1969), 298 F.Supp. 708; Pollard v. State (1973), 128 Ga.App. 470, 197 S.E.2d 158.

Nelson v. George, supra, gave frank recognition to this distinction and difference in treatment. There a California District Court had refused to exercise jurisdiction over a California prisoner’s attack on a North Carolina conviction and detainer. The Ninth Circuit,¹¹ due in large measure to the intervening decision of the Supreme Court in Peyton v. Rowe (1968), 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426, reversed, holding that the California District Court had jurisdiction to entertain the prisoner’s petition challenging both the validity of the North Carolina judgment and the effect of the detainer on petitioner’s custodial classification. In its carefully worded holding, the Supreme Court affirmed the judgment of the Court of Appeals only to the extent that it found “jurisdiction in the District Court to consider respondent’s claims with respect to the impact of the detainer * * ¹² By rejecting sub silentio the Ninth Circuit’s reasoning that the exercise of jurisdiction over the California custodian, acting as agent for North Carolina, conferred jurisdiction on the California District Court over challenges to both the validity and effect of the detainer, the Supreme Court in Nelson specifically preserved intact the distinctions inherent in the two challenges. Braden, although establishing concurrent subject matter jurisdiction in either forum, neither obliterated this distinction nor obviated the practical necessity for the different treatment accorded to prisoner challenges to the validity of foreign detainers based on those distinctions. See McEachern v. Henderson, supra (485 F.2d at 696); Baity v. Ciccone, supra (379 F.Supp. at 556).

Principles of comity and federalism command that the Court restrain itself to petitioner’s only complaint over which the federal district courts of North Carolina have both subject matter and in personam jurisdiction, to wit, the release of any adverse effects of the detainers on the conditions of his confinement as a North Carolina prisoner. In that connection, it can and may adjudge only the validity of the underlying charges as they form a basis for the conditions of his confinement in North Carolina, but not the validity of those charges as a basis for prosecution in the States of Georgia or Louisiana. The situation is analogous to that involved in an attack on a local sentence claimed to have been unconstitutionally influenced by an uncounseled conviction in another state. Some courts have held that the sentencing court can and should decide whether the foreign conviction was invalid because it was uncounseled, but those authorities so holding emphasize that while the sentencing court may for purposes of its own sentence pass on the validity of the foreign conviction, its “action [in so doing] will leave standing the conviction” in the foreign state itself, and, if the prisoner wishes to invalidate the foreign conviction, he must do so by resort to the foreign jurisdiction. See Craig v. Beto (5th Cir. 1973), 458 F.2d 1131, 1134.¹³

Baity v. Ciccone, supra, presented a problem similar to that posed in this appeal and, in our opinion, reached the correct result. There the prisoner-petitioner, confined within the jurisdiction of the Missouri District Court, sought a writ of habeas corpus to enjoin his federal custodian from relinquishing his custody to Colorado authorities to be tried on pending Colorado criminal charges. He asserted as grounds for the writ’s issuance the denial of his right to a speedy trial by Colorado. Characterizing the suit as a challenge to the validity of the Colorado detainer, the Court concluded:¹⁴

“ * * * [I]n order to possess jurisdiction in a case involving a challenge to an untried criminal charge on which a detainer is based, a federal district court must possess the power to grant relief, which would entail possessing the power to direct in person-am, that the pending charge be dismissed. However, a federal district court in the state and district of confinement simply has no state officer within its jurisdiction whom it can direct to dismiss the pending charges, and there is no way of enforcing any writ to that effect which might be issued.

* * * * i, * *

“Clearly, the exercise of jurisdiction to consider a challenge, by means of federal habeas corpus, must be made in the state and district from which the detainer issued and in which the underlying criminal charge is pending.”

The Eighth Circuit has since adopted Judge Becker’s reasoning in Baity by affirming his earlier, unreported opinion reaching the same result under identical circumstances. Wingo v. Ciccone (8th Cir. 1974), 507 F.2d 354. In Wingo a federal prisoner confined in Missouri sought on speedy trial grounds to eliminate the adverse effects of three foreign detainers on the conditions of his confinement and to enjoin the demanding states from prosecuting him on the criminal charges underlying the detainers. In rejecting the prisoner’s claim for broad injunctive relief, the Court held (507 F.2d at 357):

“The issue and the relief granted in the instant proceeding have properly been limited to elimination of the alleged punitive consequences which abide with petitioner in his day-to-day federal imprisonment as a result of the detainers lodged against him which are based on state criminal charges lying dormant pending his release.

* Hi * * jfc *

“ * * * [To grant him the severe remedy of outright dismissal on the state charges] would be an unjustifiable federal interference with [the demanding states’] judicial enforcement of their criminal laws. On the contrary, as this case is jurisdictionally presented, the District Court reached the outer limits of its power to coax prompt state resolution of the charges.”

Without expressing an opinion on the merits of petitioner’s speedy trial claims as they relate to the charges pending in Georgia and Louisiana, we hold in conformity with the rulings in Wingo and Baity, that the appropriate forums in which the petitioner may challenge the validity of the Georgia and Louisiana charges are the federal district courts in the demanding states. McEachern v. Henderson, supra (485 F.2d at 696); Reed v. Henderson (5th Cir. 1972), 463 F.2d 485, 486; Baity v. Ciccone, supra (379 F.Supp. 552); Williams v. Commonwealth of Pennsylvania, supra (315 F.Supp. at 1264). And this is particularly true in this case where the action, so far as the States of Georgia and Louisiana are concerned, violates the command of the Eleventh Amendment — and, if the action could be considered as against the individual prosecutors, though unnamed, in those States, the District Court would be unable to enforce its decree either directly or under the Full Faith and Credit Clause because of the want of in personam jurisdiction.¹⁵

Accordingly, we exercise only that jurisdiction as was acquired by personal service and grant only only that relief which we are capable of delivering, i. e., that the North Carolina custodian be directed to remove the Georgia and Louisiana detainers. We reverse the remaining portions of the District Court’s order purporting to bar Georgia and Louisiana authorities from prosecuting petitioner on the charges underlying their detainers and remand petitioner’s challenge to the validity of those charges to the District Court with instructions that they be dismissed without prejudice to petitioner’s raising his claims in the appropriate courts of Louisiana and Georgia.

Affirmed in part, reversed in part.

1 . Norris v. State of Georgia (D.C.N.C.1973), 357 F.Supp. 1200.

2 . The mailing of the petition to the Attorneys General of Georgia and Louisiana could not constitute an effective, extraterritorial service of process as described in Rule 4(e), F.R.Civ.P. Rule 4(e) authorizes a federal district court to effect a court ordered method of service on parties found outside the state only when there is direct statutory authority for doing so. Absent such authorization by a specific federal statute, the court has no “blanket authority to enter an order for substituted or personal service outside of the state in which it is sitting.” 4 Wright & Miller, Federal Practice and Procedure § 1117, p. 482 (1969). See, also, Central Operating Co. v. Utility Workers of America (4th Cir. 1974), 491 F.2d 245, 249.

3 . The response cited Ga.Code § 40-209, prescribing that process in any proceeding against the State must be served upon the Governor. This is also the requirement of Rule 4(d)(6), F.R.Civ.P.

4 . It might be well to add that the District Court treated the issue of jurisdiction entirely in terms of subject matter. At no time did it address the question of jurisdiction in person-am over the defendants Georgia and Louisiana. Had it done so, it should have- become obvious that the suit against those two States in the federal court of North Carolina was so “palpably in violation of * * * [the Eleventh] Amendment * * * ” (Scully v. Bird (1908), 209 U.S. 481, 486, 28 S.Ct. 597, 598, 52 L.Ed. 899) that the District Court should have dismissed out of hand the proceedings as against those States. Nor could the Attorney General of North Carolina have had authority to waive the constitutional immunity from suit of those States by any action on his part. See Ford Co. v. Dept. of Treasury (1945), 323 U.S. 459, 468, 65 S.Ct. 347, 89 L.Ed. 389; Hagood v. Southern (1886), 117 U.S. 52, 71, 6 S.Ct. 608, 29 L.Ed. 805; Board of Regents of University of Nebraska v. Dawes (D.C.Neb.1974), 370 F.Supp. 1190, 1193.

It may be suggested that the action could be treated as one against the prosecuting officers in the States of Georgia and Louisiana and thereby avoid the bar of the Eleventh Amendment. But, unfortunately for this argument, those officers are not named parties and there has never been any service upon them. It is true that notice was mailed to the Attorneys General of Louisiana and Georgia (after the Court had resolved the issue of jurisdiction over the subject matter of the suit), but this would not give the Court personal jurisdiction of those officials, since there was no authority for such service of process outside the jurisdiction of the State of North Carolina. See note 2, supra. Moreover, the argument would presuppose that the State Attorney General controls prosecutions in the State, a presumption that is not in accord with the rule in many states where the control of prosecutions is vested in the local District Attorney or Solicitor. Manifestly, it cannot be argued that personal jurisdiction over these local prosecutors was ever had. They were neither named as parties nor was any form of notice given them. This would be an additional ground for invalidating so much of the order of the District Court as would enjoin the States of Georgia and Louisiana from further prosecution of the petitioner.

5 . See Ga.Code § 2^602, Art. VI, § XI, par. 2 and § 24-2901 et seq.

6 . See Ga.Code § 77-504b.

7 . The District Court properly found, as the North Carolina Attorney General conceded, that the North Carolina authorities had given express consideration to the Georgia and Louisiana detainers in determining petitioner’s eligibility for parole, honor-grade custody and other institutional privileges for which he would have been eligible had not the detainers been lodged against him.

8 . 410 U.S. at 500, 93 S.Ct. 1123.

9 . Cited approvingly in McEachern v. Henderson (5th Cir. 1973), 485 F.2d 694, 696.

10 . Even were we to assume that the States of Georgia and Louisiana were amenable to process by service on the North Carolina warden acting as their agent for service of process, the Court’s exercise of in personam jurisdiction would still be without justification. This is so because the North Carolina warden was never served with the petition in his representative capacity as an alleged agent of the States of Georgia and Louisiana or otherwise. At a minimum, service on the immediate custodian as an agent for the demanding state would be a condition precedent to any claim under an agency theory for the exercise of in personam jurisdiction over Georgia and Louisiana.

11 . George v. Nelson (9th Cir. 1969), 410 F.2d 1179.

12 . 399 U.S. at 230, 90 S.Ct. at 1967 (emphasis added).

13 . See, also, Weiss v. Blackwell, supra (310 F.Supp. at 363):

“At the hearing this Court will decide if the state has made a diligent, good-faith effort to bring the petitioner to trial. Prison officials should not be called upon by the prisoners to make a determination of the reasonableness of a state’s delay. The hearing will only consider the restrictions imposed at the federal prison under the state detainer, not the underlying state criminal charges. (As to these charges, the prisoner must pursue his remedies in state court to secure a speedy trial or to reverse any conviction tainted by the passage of an unreasonable delay in trial, before the prisoner may go Into a federal district court in that state to seek relief.)” (Emphasis in opinion).

14 . 379 F.Supp. at 556 and 558.

15 . See, 4 Wright & Miller, Federal Practice and Procedure, § 1063, p. 204 (1969):

“Although it is important to distinguish among the concepts of subject matter jurisdiction, venue, jurisdiction over the person, and service of process, it also should be kept in mind that these subjects are intimately related and that ail four requirements must be satisfied in every case.” (Emphasis added)