IRENE C. BERGER

MEMORANDUM OPINION AND ORDER

The Court has reviewed the Petitioner's Application Under 28 U.S.C. § 2241 for Writ of Habeas Corpus By a Person in State or Federal Custody ("Section 2241 Petition") (Document 1), wherein he challenges a detainer lodged against him by the state of South Carolina on March 30, 2010. By Standing Order (Document 4) entered on May 10, 2010, this action was referred to the Honorable R. Clarke VanDervort, United States Magistrate Judge, for submission to this Court of proposed findings of fact and recommendation for disposition, pursuant to 28 U.S.C. § 636. The Magistrate Judge has submitted Proposed Findings and Recommendation ("PF&R") (Document 11) in which it is recommended that this Court dismiss Petitioner's claims as moot and remove this matter from the Court's docket.

Upon consideration of the Section 2241 Petition, the memorandum in support thereof, the PF&R, and Petitioner's objections (Document 12), this Court finds that the Magistrate Judge's ultimate disposition should be adopted for the reasons set forth herein.

I. BACKGROUND

On August 16, 1999, Petitioner Matthew Paul Morris was sentenced in the Northern District of Georgia to seventy-one (71) months of imprisonment, to be followed by five (5) years of supervised release for drug and various firearm convictions. On the same day, the court revoked his previous term of supervision and sentenced him to a consecutive eighteen (18) month term of imprisonment. Following his release, Petitioner began his term of supervised release on September 9, 2005. In June 2006, the jurisdiction of his supervision was transferred to the Southern District of West Virginia.

Thereafter, on August 31, 2007, Petitioner's assigned probation officer filed a Petition for Warrant or Summons for Offender Under Supervision followed by two Amended Petitions alleging that Petitioner tested positive for a narcotic and absconded from supervision. (United States v. Morris, Crim.No.2:06-cr-00167-1 (S.D. W. Va. Jan. 18, 2008)). The probation officer also alleged that Petitioner was arrested on August 12, 2007, in Orangeburg County, South Carolina, for resisting arrest, two counts of aggravated assault and battery, and unlawful possession of a firearm by a convicted felon. It was further alleged that the Court released Petitioner on a $20,000 bond on August 24, 2007. However, Petitioner failed to appear for his October 8, 2007 South Carolina court date, which resulted in the issuance of a bench warrant. In an Amended Petition, it was alleged that on November 17, 2007, Petitioner was arrested by a fugitive task force in Wesley Chapel, Florida, where he was found in close proximity to two firearms.

On January 14, 2008, an assigned Judge of this Court found by a preponderance of the evidence that Petitioner violated his conditions of supervision as alleged in the petitions, revoked his supervision and sentenced him to a term of imprisonment of thirty-six (36) months, with no further supervision to follow. (Memorandum Opinion and Order, United States v. Morris, Crim.No.2:06-cr-00167-1 (S.D. W. Va. Jan. 18, 2008) (Document 19) (Faber, J.)).

Upon revocation, Petitioner was housed at the United States Penitentiary - Lee ("USP-Lee") in Jonesville, Virginia. On July 9, 2008, a Supervisory Inmate Systems Specialist composed a Detainer Action Letter addressed to the Orangeburg County Sheriff's Office to request information about whether there were outstanding warrants related to Petitioner's August 12, 2007 arrest. (Petitioner's Ex. A (Document 2) at 9). The Specialist also advised of Petitioner's custody status and tentative release date (June 16, 2010), inquired whether the office "wish[ed] to lodge a detainer" against Petitioner and provided instructions for lodging the detainer at that facility. The record before the Court does not reveal whether this letter was actually forwarded to the addressee or whether any response was received by the Bureau of Prisons ("BOP") at USP-Lee. However, on January 11, 2009, Petitioner forwarded an Inmate Request to Staff in which he asserted that he had a detainer from Orangeburg, South Carolina and that he "want[ed] to get this taken care of as soon as possible." (Petitioner's Ex. B-2 (Document 2) at 13). He also requested assistance "with a speedy trial." (Id.) On January 20, 2009, the Specialist advised Petitioner that:

Orangeburg County Sheriff's Office does have an active warrant for your arrest in reference to a bench warrant issued for failure to appear for an Aggravated Assault - Gun Charge. They have not lodged an official detainer."

At some point thereafter and for reasons not in the record, Petitioner's Custody Classification changed (detainer points were removed) and he was transferred to FCI - Beckley in Beaver, West Virginia. (Petitioner's Ex. C (Document 2) at 16). On September 23, 2009, while in custody at FCI-Beckley, an inmate Progress Report was completed by a BOP staff member. (Petitioner's Ex. D (Document 2) at 18). This Progress Report included the notation that:

Inmate Morris has warrants from Orangeburg County, South Carolina for Failure to Appear on the original charges of Aggravated Assault and Battery, Possession of a Firearm by a Convicted Felon, and Resisting Arrest. They will pick up only from North Carolina, South Carolina and Georgia.

Petitioner was later advised by the BOP that he would be released to a community correction center on April 6, 2010. (Petitioner's Ex. H (Document 2) at 32-33). However, on March 30, 2010, the Orangeburg County Sheriff's Office forwarded to FCI - Beckley a copy of the South Carolina bench warrant and a "Warrant Hold/Release Sheet" which requested that Petitioner be held and that the office be notified when he could be picked up. (Petitioner's Ex. F-2 (Document 2) at 24-26). In immediate response, an FCI Beckley staff member composed a Detainer Action Letter addressed to the Orangeburg County Sheriffs Office, Sheriff Larry Williams, to confirm that a Detainer had been filed against Petitioner in its favor and identified his tentative release date as June 16, 2010. (Petitioner's Ex. F-5 (Document 2) at 27).

II. PETITIONER'S WRITTEN SUBMISSION

On May 10, 2010, Petitioner filed the instant civil action seeking to challenge the March 30, 2010 South Carolina Detainer by asserting that "the State of South Carolina violated [his] due process rights under the [Interstate Agreement on Detainers or] IAD, by lifting the detainer one (1) year earlier." (Section 2241 Petition at 6.) According to Petitioner, Orangeburg County has acted in bad faith to deliberately circumvent his due process. (Memorandum of Law in Support of Petitioner's 28 U.S.C. § 2241 ("Pet.'s Mem.") (Document 2) at 4.) He argues that Orangeburg County was made aware of his imprisonment and whereabouts as early as July 2008 and that the attorney for the government did not seek to obtain his presence in that jurisdiction for trial or cause a detainer to be filed with the BOP, in violation of the Speedy Trial Act, 18 U.S.C. § 3161(j)(1). (Id.) Petitioner asserts that a Detainer was lodged against him from Orangeburg County on or around July 9, 2008, he instructed his BOP counselor that he wanted to "dispose of the matter," he later learned that although he had an outstanding warrant in South Carolina, a detainer had not been lodged, and that he later indicated his intention to resolve the South Carolina charges to BOP staff in September 2009. (Id. at 2-3.) He argues that "[f]or at least twenty months" South Carolina was aware of his incarceration, but it failed to accept his custody or attempt to secure his presence, that he "requested to resolve the matter via proper BOP channels available to him" but was told "that there [wa]s nothing to be handled," and that when FCI Beckley sent out the requisite Detainer Action Letter, South Carolina lodged a detainer stopping his release to a halfway house "[a]t the last minute." (Id. at 5.) According to Petitioner, the "deliberate failure to lodge a detainer until the last possible moment amounts to nothing less than a 'dirty trick' designed to violate [his] due process while at the same time deceiving the BOP as to the true intent to prosecute [him]." (Id. at 5-6.)

Petitioner asserts that exhaustion of administrative remedies is futile because (1) the BOP does not have the authority to remove, suspend or resolve this issue and (2) if immediate relief is not given, his claim will be moot due to his scheduled release. (Id. at 3.) He also contends that he "failed to challenge the issues because the party States [sic] response was taken in good faith that they would not extradite." (Section 2241 Petition at 7.) Consequently, Petitioner requests this Court to lift the South Carolina detainer and to dismiss with prejudice the charges in Orangeburg County for violating 18 U.S.C. § 3161(j)(1)(A) and (B) as a matter of law. (Pet.'s Mem. at 6.). Petitioner was released from federal custody on June 16, 2010. (BOP website Inmate Locater). On June 23, 2010, he advised this Court that he was being held at the Southern Regional Jail in Beaver, West Virginia. (Document 6). Thereafter, on October 14, 2010, Petitioner notified this Court of his new address at the Okeechobee County Jail in Okeechobee, Florida. (Document 7). It appears from the record that, to date, Petitioner is still in custody in Florida.

III. MAGISTRATE'S PF&R AND PETTIONER'S OBJECTIONS

On July 31, 2013, Magistrate Judge VanDervort submitted his PF&R (Document 11), wherein he concluded that Petitioner's Section 2241 Petition must be dismissed as moot, by virtue of his release from custody and the absence of any collateral consequences. (PF&R at 3.) The Magistrate Judge also found that the Respondent in this matter "can no longer provide the requested relief." (Id.)

Petitioner timely filed objections to the PF& R, wherein he disputes that his claims are moot because: (1) he is currently in custody and has been since the filing of his Petition; (2) although the South Carolina Detainer has been lifted, the South Carolina charges remain pending against him in violation of his due process right; (3) his "recent attempts" to resolve the charges have been ignored, and (4) he has an actual injury because he failed to receive the community correction center placement prior to the conclusion of his federal sentence and because his South Carolina charges are still unlawfully pending, (Objection to the Proposed Findings and Recommendations ("Pet.'s Obj.") (Document 12) at 1-3).

In an effort to demonstrate his "recent attempts" to resolve the South Carolina charges, Petitioner attached his May 19, 2013 Letter to the "Clerk of Court & Sheriff's Office." (Pet.'s Obj. Ex. B (Document 12) at 6). In the letter, Petitioner acknowledges his custody in the state of Florida; advises that while he was in federal custody, South Carolina lodged a detainer against him, "but decided to drop it and let the State of Florida take custody of [him]"; that the warrants are still pending according to NCIC and that he was "requesting a final disposition to either have these charges dropped or for South Carolina to come get [him] so that [he] can go to Court on them." (Id).

IV. STANDARD OF REVIEW

This Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, this Court need not conduct a de novo review when a party "makes general and conclusory objections that do not direct the Court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). When reviewing portions of the PF&R de novo, the Court will consider the fact that the Plaintiff is acting pro se, and his pleadings will be accorded liberal construction. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978).

V. DISCUSSION

The Court has considered Petitioner's specific objections to the Magistrate Judge's findings that his claims are moot. Since mootness goes to the heart of the Article III jurisdiction of the courts, this Court must consider whether Petitioner's case presents a live case or controversy. Friedman's, Inc. v. Dunlap, 290 F.3d 191, 197 (4th Cir. 2002). The Court has considered de novo Petitioner's Section 2241 Petition, wherein he argues that the South Carolina detainer impacted his halfway house placement and that South Carolina officials lodged the detainer unlawfully in violation of the Speedy Trial Act and the IAD. Petitioner prays that this Court lift the South Carolina detainer and dismiss with prejudice the corresponding South Carolina charges due to South Carolina's alleged violation of the Speedy Trial Act. (Pet.'s Mem. at 6.) In the first instance, the Court finds that a fair reading of the pro se Section 2241 Petition is that Petitioner is challenging both the effect and validity of the March 30, 2010 South Carolina detainer. See Norris v. Georgia, 522 F.2d 1006, 1011 (4th Cir. 1975) (recognizing the "fundamental distinction" that exists between an attack on the validity of a detainer on a speedy trial ground and an attack on the effect of the detainer, with the latter dealing with the "adverse impact created by the immediate custodian's imposition of a special 'form of custody' on the prisoner as a result of a the filing of the detainer.") The Court will consider each attack on the detainer separately.

A. Effect of Detainer

It has been established 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." (Norris, 522 F.2d at 1010) (citing Nelson v. George, 399 U.S. 224 (1970)). Inasmuch as Magistrate Judge VanDervort has recommended that the instant action be denied as moot due to Petitioner's release from federal custody, the Court finds this disposition is appropriate, to the extent that Petitioner challenges the effect of his detainer.

According to Petitioner, BOP staff informed him of his eligibility for halfway house placement and that the placement was scheduled to begin on April 6, 2010. However, "at the last minute" this placement was stopped due to the South Carolina detainer. At the time Petitioner filed this action in May 2010, he desired this detainer to be lifted so that his release would not be impeded. Notwithstanding his own acknowledgement in his Petition that his claim would be moot upon his release (Pet.'s Mem. at 3), he now contends that his claim presents a live case or controversy because he has an actual injury which includes the denial of his halfway house placement.

The Court finds that Petitioner's claim is moot for two reasons: (1) his Federal sentence has expired and (2) by admission, the relief he sought, in having the detainer lifted, has already occurred. Petitioner's federal sentence expired on June 16, 2010, approximately one month after he filed this action. Insofar as he maintains that he is entitled to relief related to his halfway house placement, the Court finds, as did the Magistrate Judge, that the relief he seeks is simply unavailable. His federal sentence, the basis for his custody which would have included the halfway house placement, has ended. Therefore, the expiration of his federal sentence has rendered moot his claim regarding the effect the South Carolina detainer had on his conditions of confinement at FCI Beckley or his halfway house placement. The Court observes from the record in this case that Petitioner is now outside of federal jurisdiction, as he contends he is in custody in the state of Florida. Petitioner's current custody status related to another criminal charge or conviction is immaterial to the opportunity for halfway house placement on his now expired federal sentence. Therefore, regardless of his location, the Court finds that Petitioner's claim regarding the effect the South Carolina detainer had on halfway house placement and custody classification at FCI Beckley is no longer a live case or controversy. Further, just as the Magistrate Judge found, since Petitioner is no longer in federal custody, he is no longer in the custody of the Respondent. Consequently, any direction or order to the Respondent relative to his claim herein would be unavailable.

Moreover, in his objection, Petitioner asserts his custodial status is in the state of Florida and he represents that the South Carolina detainer has been "lifted" so that he could be sent to Florida. Petitioner does not provide any evidentiary support for the same. However, if this Court credits Petitioner's own statement, his request that this Court lift the South Carolina detainer has been rendered moot. Therefore, the Court finds that Petitioner's objections in this regard should be overruled.

B. Validity of the Detainer

To the extent Petitioner asserts that South Carolina officials violated the Speedy Trial Act or the IAD by lodging the March 30, 2010 detainer, this Court finds that Petitioner is challenging the validity of the detainer. With respect to this challenge, the Court finds that Petitioner has not raised this claim in the proper forum.

The thrust of Petitioner's case is that he seeks the dismissal of the charges alleged in South Carolina. He has asserted that he attempted to seek resolution of these charges and that South Carolina officials knew of his place of incarceration for over twenty months. Petitioner also asserts that South Carolina has lodged and lifted his detainer, but the charges remain pending.

Whatever the validity of these assertions may be, this Court finds that the claim is not properly before this Court. Any contention with respect to the legality of the detainer must be pursued in the demanding state. Norris, 522 F.2d at 1013-14 (discussing approvingly the result of the Eighth Circuit Court of Appeals' consideration of this issue in Wingo v. Ciccone, 507 F.2d 354, 357 (8th Cir. 1974)). Therefore, "[t]he appropriate forum in which these challenges may be made is in the federal courts in [South Carolina]. Prior to seeking habeas relief in the federal courts in [South Carolina], however, [Petitioner] must first exhaust his state remedies in the [South Carolina] courts." Wallace v. Crawley, No. 87-6525, 1987 WL 35965 (4th Cir. Apr. 22, 1987) (unpublished per curiam decision) (citing Norris, 522 F.2d 1066) (affirming the dismissal of Section 2241 Petition of North Carolina inmate attacking the validity of a Virginia parole violator detainer and the effect the detainer was having on his North Carolina custody); see also Jones v. DeBoo, Civil Action No.1:11CV142, 2012 WL 2396367 at *2 (N.D. W. Va. June 25, 2012), appeal dismissed, No. 12-7109 (4th Cir. Sept. 17, 2012) (a federal West Virginia inmate cannot properly assert a challenge to the validity of a Pennsylvania probation detainer in a Section 2241 petition because the proper vehicle is a habeas corpus petition in the district in which the detainer originated). Since relief cannot be had on the legality of the South Carolina detainer in this jurisdiction, the Court finds that this claim should be dismissed without prejudice.

Finally, although Petitioner has sought relief from the South Carolina detainer by letter to the Clerk of Court and the Sheriff, this letter is dated May 19, 2013, three years after filing the instant petition. As such, it is immaterial to this civil action since a petitioner is required to exhaust his state remedy prior to seeking federal habeas relief. This Court cannot find that he has done so. Therefore, the Court is not inclined to transfer this matter to any South Carolina court.

Upon consideration of the foregoing, the Court finds that Petitioner's objections are insufficient to bar the dismissal of his claim relative to the validity of the South Carolina detainer. As a matter of law, this Court cannot provide the relief Petitioner seeks. Therefore, the Court finds that his Objections should be overruled.

VI. CONCLUSION

Accordingly, for the reasons stated above, the Court ADOPTS IN PART the Magistrate Judge's Proposed Findings and Recommendation. The Court does hereby ORDER that Petitioner's Objections are OVERRULED. The Court ORDERS that to the extent Petitioner challenges the effect of the South Carolina detainer on his condition of confinement, his claim is MOOT. The Court further ORDERS that to the extent Petitioner challenges the validity of the detainer, his claim is improper in this Court and must be DISMISSED.

Consequently, the Court ORDERS that Petitioner's Application Under 28 U.S.C. § 2241 for Writ of Habeas Corpus By a Person in State or Federal Custody (Document 1)be DISMISSED WITHOUT PREJUDICE and that this matter be REMOVED from the docket of the Court.

The Court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge VanDervort, to counsel of record, and to any unrepresented party.

____________________

IRENE C. BERGER

UNITED STATES DISTRICT JUDGE

SOUTHERN DISTRICT OF WEST VIRGINIA

(Wingo, 507 F.2d at 357.)