Appellant Stephen Mokone is currently serving an eight- to twelve-year sentence at Rahway, New Jersey State Prison. At the conclusion of his New Jersey incarceration, Mokone is scheduled to serve time in New York state for a New York conviction. This is an appeal from a district court's dismissal without prejudice of Mokone's attempt to invalidate his New York State conviction on the ground that it was allegedly obtained in violation of the Interstate Agreement on Detainers ("IAD").1 The appeal presents two questions. First, can such a challenge be brought under the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983 (Supp. V 1981), or must it be a habeas corpus proceeding pursuant to 28 U.S.C. Sec. 2254 (1976)? Second, if the challenge is necessarily a habeas action, must a petitioner exhaust the remedies of the custodial state or those of the state issuing the judgment of conviction?

We conclude that when a challenge is made under the IAD to an out-of-state conviction for which a sentence is to be served in the future, a habeas corpus petition is the appropriate vehicle and that remedies must be exhausted in the courts of the state where the judgment issued. We therefore will affirm the judgment of the district court.2I.

In August 1978, while Mokone was in pretrial detention in Middlesex County, New Jersey Jail, New York City police lodged a detainer against him based upon a pending, unrelated New York state indictment charging him with assault in the first degree. Following his sentencing in New Jersey, Mokone sought disposition of the New York indictment and on January 20, 1979, he wrote to the District Attorney of New York County and the Clerk of the Supreme Court of New York County in order to request a speedy trial.3

In response to his letter-request, Mokone was transported to New York on March 20, 1979 and arraigned on May 24, 1979. In July 1979, not yet having been tried, Mokone wrote to the Governor of New Jersey to protest New York's alleged failure to provide him with a speedy trial.4 Beginning in August 1979, Mokone also directed numerous motions and petitions to the New York courts. These filings, which were submitted both pro se and by counsel, sought dismissal of the indictment on the ground that Mokone had not been brought to trial within the 180-day period required by Article III of the IAD.5 For reasons not clear from the record, Mokone's efforts were unsuccessful, and trial eventually commenced on March 25, 1980. On May 8, 1980, Mokone was found guilty of assault in the first degree, and in September 1980, he was sentenced to five to fifteen years in prison, to be served consecutively to his New Jersey sentence.6 Shortly thereafter he returned to Rahway to complete his New Jersey term.

After his return, Mokone wrote to the New Jersey Department of Corrections and requested that the New York detainer be disregarded on the ground that the underlying conviction was invalid. The Bureau of Interstate Services of the New Jersey Department of Corrections responded that it lacked the authority to do so. Subsequently, the New Jersey Parole Board informed Mokone that his scheduled parole date was September 1, 1981 and that he would be sent to New York at that time. Although Mokone asked that he be paroled under New Jersey supervision, the Parole Board advised him that it lacked the authority to grant his request.7

Mokone then filed the instant action against the Warden of Rahway Prison, the New Jersey Attorney General, and the Chairman of the New Jersey Parole Board. The complaint principally alleged that Mokone's New York conviction was invalid because New York authorities had not brought him to trial within the time set forth in Article III of the IAD. Invoking both section 1983 and section 2254,8 he requested that the district court (1) declare the New York detainer invalid; (2) enjoin New Jersey officials from extraditing him to New York upon his release from prison in New Jersey; and (3) enjoin appellees from using the New York detainer in order to cause him "harmful collateral consequences" during his confinement in New Jersey.

Appellees moved to dismiss the complaint. They contended that Mokone first was required to exhaust his New York state remedies because he essentially was challenging the validity of his New York conviction. They pointed out, however, that his appeal from his New York conviction was still pending. See supra note 6. Appellees also maintained that because Mokone's claim of "harmful collateral consequences" in New Jersey was premised solely on his contention that the New York conviction was invalid, the exhaustion requirement would also apply to this second claim.

Mokone opposed the motion to dismiss. He argued that he was not challenging his present confinement9 and therefore contended that he should be allowed to proceed under section 1983. Mokone also maintained that section 1983 provides an appropriate avenue for the district court to consider the adverse effect the New York detainer was having upon his present custody. Alternatively, Mokone requested that if the district court were to grant the motion that it should nevertheless either do so without prejudice or retain jurisdiction so that he would be able to renew his claim in federal court once he had exhausted his state remedies.10

Relying upon our decision in Grant v. Hogan, 505 F.2d 1220 (3d Cir.1974), the district court dismissed the complaint without prejudice for failure to satisfy the exhaustion requirement of 28 U.S.C. Sec. 2254. A timely appeal followed; we granted appellant's request for a certificate of probable cause, see Fed.R.App.P. 22(b), and appointed counsel to represent him.II.

Appellant's first contention on appeal is that the district court erred in not permitting him to maintain his suit pursuant to 42 U.S.C. Sec. 1983. He points out that he does not question the legality or duration of his present confinement in New Jersey, but rather requests injunctive and declaratory relief from the effect of an allegedly invalid detainer.

Despite the fact that Mokone does not challenge his New Jersey incarceration, Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973), requires that we construe Mokone's suit as a petition for a writ of habeas corpus. Preiser held that "when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus." Id. at 500, 93 S.Ct. at 1841 (emphasis added). The Court in Preiser expressly noted that its holding extended to cases in which a prisoner is seeking future release. Id. at 487, 93 S.Ct. at 1835. Mokone's petition falls squarely within that holding. Mokone's claim that the New York detainer is invalid and his claim that he is entitled to an injunction against appellees' releasing him into New York's custody once he has served his New Jersey sentence are based on his contention that his New York conviction is invalid because his trial was not timely under Article III of the IAD. His suit is thus essentially one for release from future detention that will result solely from his New York conviction.11 We therefore will affirm the district court's construction of appellant's challenge to the validity of the New York detainer as a petition for a writ of habeas corpus.12

The considerations of comity underlying the exhaustion requirement of the habeas corpus statute demand that state courts have the first opportunity to review the alleged constitutional error. Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512, 30 L. Ed. 2d 438 (1971). The question is whether the courts of New York or those of New Jersey should properly be afforded that opportunity here. While we have not previously answered this question in the context of a challenge to an out-of-state conviction, we have held that a habeas petitioner seeking a speedy trial in another state, or seeking to bar prosecution of a charge upon which an out-of-state detainer is based, must exhaust the remedies of the state where the charge is pending. See United States ex rel. Jennings v. Pennsylvania, 429 F.2d 522, 523-24 (3d Cir.1970); Grant v. Hogan, 505 F.2d 1220, 1223 (3d Cir.1974); accord Trigg v. Moseley, 433 F.2d 364, 366 (10th Cir.1970); Word v. North Carolina, 406 F.2d 352, 356 (4th Cir.1969) (en banc). There are sound reasons to extend those holdings to an attack on a conviction.

First, the IAD provides that only a court of the state where the indictment is pending may grant any "necessary or reasonable continuance" from the time limits specified in the IAD.13 Such a court also determines whether the time limits are tolled because a prisoner is unable to stand trial.14 Second, all of the records, and most of the witnesses, necessary to resolving whether a violation of the IAD has occurred are in the indicting state. Finally, Article V(c) of the IAD provides that the courts of the state where the charge is outstanding are to dismiss the charge if trial is not had within the statutory period.15

As we read these provisions, only the courts of the indicting state can enter an order that would effectively void the criminal charge. Thus the New Jersey courts would be foreclosed from considering the merits of Mokone's alleged speedy trial violation. See State v. West, 79 N.J.Super. 379, 387, 191 A.2d 758, 762 (App.Div.1963) (IAD does not confer jurisdiction in custodial state to dismiss indictments in another state); State ex rel. Garner v. Gray, 59 Wis. 2d 323, 208 N.W.2d 161 (1973) (determination whether speedy trial provision of IAD has been satisfied cannot be made by custodial state but must be made by state in which charges are pending); see generally Annot., 98 A.L.R. 3d 160 (1980). Under these circumstances, it would be pointless to require Mokone to exhaust his New Jersey remedies. By contrast, New York's interest in requiring him to exhaust New York remedies is evident.16

We therefore hold that when a challenge is made to an out-of-state conviction on the basis of an alleged violation of the speedy trial provision of the IAD, the habeas corpus petitioner must, prior to the invocation of federal judicial relief, exhaust the remedies available in the courts of the state that issued the contested judgment of conviction.

For the foregoing reasons, we will affirm the judgment of the district court.