Noonan v. Smith

Full title: Michael Thomas NOONAN, Petitioner, v. Harold J. SMITH, as Superintendent…

Court: United States District Court, W.D. New York.

Date published: May 15, 1974

375 F. Supp. 925 (W.D.N.Y. 1974)

Opinion

375 F.Supp. 925 (W.D.N.Y. 1974) Michael Thomas NOONAN, Petitioner, v. Harold J. SMITH, as Superintendent of Attica Correctional Facility, Respondent. No. Civ. 74-81. United States District Court, W.D. New York. May 15, 1974

        Michael Thomas Noonan, pro se.

        CURTIN, Chief Judge.

        In response to this court's order of March 22, 1974, respondents have submitted an answering affidavit. That affidavit is a motion to transfer venue in this case, pursuant to 28 U.S.C. § 1404, to the United States District Court for the Central District of California. Petitioner's habeas corpus petition challenges a California detainer filed with the Attica Correctional Facility in March of 1973. The detainer is based upon a California judgment of conviction of burglary in the second degree, in violation of Section 459 of the Penal Code of the State of California. That judgment of conviction was entered in the Los Angeles County Superior Court on June 3, 1970. Petitioner alleges exhaustion of his state remedies.

         The initial question for the court is whether petitioner can challenge the California detainer while in custody in New York. Based on the facts now before the court, it is clear that he can. The writ of habeas corpus may be employed to contest the validity of future as well as present restraints. See Peyton v. Rowe, 391 U.S. 54, 67, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968) .         So ordered.