The opinion of the court was delivered by: GURFEIN
The petitioner, presently incarcerated in the United States Penitentiary, Lewisburg, Pennsylvania, makes application to this Court by petition for a writ of habeas corpus for a new trial or for modification of the indeterminate sentence, not to exceed 20 years, imposed by a New York State court after a plea of guilty to the charge of first degree Arson on May 6, 1971. (Penal Law, Sec. 150.15 (McKinney 1967)).
Petitioner challenges the validity of the detainer lodged against him by the State of New York. He does not contest the validity of his federal sentence. Under the rationale of Peyton v. Rowe, 391 U.S. 54, 88 S. Ct. 1549, 20 L. Ed. 2d 426 (1968), a prisoner is not precluded from seeking habeas relief as to a sentence scheduled for future service. This overruling of the prematurity doctrine of McNally v. Hill, 293 U.S. 131, 55 S. Ct. 24, 79 L. Ed. 238 (1934), permits a prisoner, as in the case here, to challenge the longer of two concurrent sentences, Lydy v. Beto, 399 F.2d 59 (5 Cir. 1968), and has enabled a petitioner held in one state to attack a detainer lodged against him by another state, George v. Nelson, 410 F.2d 1179 (9 Cir. 1969), aff'd, 399 U.S. 224, 90 S. Ct. 1963, 26 L. Ed. 2d 578 (1970).
Petitioner commenced this habeas corpus action in the United States District Court for the Middle District of Pennsylvania, the district in which he is currently incarcerated. On the authority of Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S. Ct. 1123, 35 L. Ed. 2d 443 (1973), that court concluded that jurisdiction was properly founded in the Southern District of New York as the court located nearest the site of the underlying controversy, and transferred the case pursuant to 28 U.S.C. § 1404(a).
Exhaustion of State Remedies
Petitioner appears to have complied with the requirement of 28 U.S.C. § 2254(b) that he exhaust his state court remedies before presenting his claim to the Federal Court. Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963).
He appealed his conviction and it was affirmed. Leave to appeal to the New York Court of Appeals was denied on November 3, 1972. Petitioner did not apply for a writ of certiorari to the United States Supreme Court.
There was state court exhaustion of the specific subject matter raised in this collateral attack, Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971); United States ex rel. Nelson v. Zelker, 465 F.2d 1121 (2 Cir.), cert. denied, 409 U.S. 1045, 93 S. Ct. 544, 34 L. Ed. 2d 497 (1972), as an examination of respondent's and petitioner's briefs to the Appellate Division indicate that the basic issues raised here, coercion of the guilty plea by prosecutorial suppression of exculpatory evidence and overindictment and the abuse of judicial discretion in sentencing, were duly raised in the state courts.
Petitioner does, however, raise one claim which he had not previously advanced in the state courts. He now claims that by vacating his state sentence and by releasing him to federal authorities, the State of New York has waived jurisdiction over him and is without power to require him to return to New York to serve his state sentence. With respect to this claim, petitioner has failed to exhaust his remedies in the state courts. In any event, the procedure followed was that suggested by petitioner's own counsel as the only way to effectuate the intention of the sentencing court that petitioner's state sentence be served concurrently with his federal sentence.
On February 5, 1970, Benjamin Warren was the subject of five Bronx County Grand Jury indictments arising from his involvement in two unlawful fires. Warren was charged with having set fire to a Bronx apartment building on August 4, 1969, and having instigated three teenage boys to set a fire in that same building on August 6, 1969. The three boys were victims of that fire. In a deathbed statement to his father, one of the boys, Estaban Torres, claimed that Warren had poured gasoline over him and then ignited him with a match. Warren was indicted for murder, felony murder and two counts of arson.
At the time of his arrest on the charges described above, a bench warrant for petitioner was outstanding as a result of his failure to appear for sentencing on September 5, 1969 before the federal district court for the Southern District of New York on a charge of mail fraud in violation of 18 U.S.C. § 1341 to which he had previously pleaded guilty. On March 19, 1970, Warren was brought before the federal court on a writ of habeas prosequendum, sentenced to five years, and redelivered to the state officials for trial. Petitioner's motion to this ...