Opinion
CIV-23-313-SLP
09-26-2023
FABIAN ARTURO MARRUFO, Petitioner, v. CARRIE BRIDGES, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE
Petitioner Fabian Marrufo, a convicted state prisoner appearing pro se, has filed this action under 28 U.S.C. § 2241, alleging a violation of his constitutional rights. (ECF No. 1). United States District Court Scott L. Palk has referred the matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). Respondent Carrie Bridges has filed a Motion to Dismiss and Brief in Support, seeking dismissal due to a lack of jurisdiction and Petitioner's failure to exhaust his state court remedies. (ECF Nos. 10 & 11). Petitioner filed a Response to the Motion to Dismiss. (ECF No. 12). The undersigned has examined the pleadings and recommends the Petition be DISMISSED.
I. BACKGROUND AND RELEVANT LAW
Petitioner is currently incarcerated at James Crabtree Correctional Center (JCCC) in the custody of the Oklahoma Department of Corrections (DOC), pursuant to three convictions stemming from Muskogee County, Oklahoma. (ECF Nos. 1:1; 11-1, 11-2, 113). Mr. Marrufo has filed this habeas Petition under the belief that he is subject to an untried criminal detainer/arrest warrant by Texas state officials in El Paso County, Texas, Case No. 2012-0D01180. See ECF No. 1. According to Mr. Marrufo, "if said Texas detainer @ Question can be extinguished Petitioner could be eligible for immediate release from ODOC.” (ECF No. 1:2). Mr. Marrufo apparently believed that resolution of this issue could be accomplished if Oklahoma State officials would "begin the Interstates Aggrement [sic] on Detainers,” thus he filed a Request to Staff to begin the process. (ECF No. 1-1:2).
"A State seeking to bring charges against a prisoner in another State's custody begins the process by filing a detainer, which is a request by the State's criminal justice agency that the institution in which the prisoner is housed hold the prisoner for the agency or notify the agency when release is imminent.” New York v Hill, 528 U.S. 110, 112 (2000). "After a detainer has been lodged against him, a prisoner may file a request for a final disposition to be made of the indictment, information, or complaint.” New York v. Hill, 528 U.S. at 112 (citation omitted).
The State of Oklahoma and the State of Texas are parties to the Interstate Agreement on Detainers Act (IADA). See Okla. Stat. tit. 22 § 1347; Tex. Code Crim. Proc. Art. 51.14. Article III(a) of the Oklahoma and Texas IADA is relevant to the instant action and provides:
Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party State any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint.Okla. Stat. tit. 22 § 1347, Art. III(a); Tex. Code Crim. Proc. Art. 51.14, Art. III(a).
Respondent Bridges responded to the Request to Staff stating that "Records was instructed to begin the IAD paperwork.” (ECF No. 1-1). However, two days after the initial response, another staff member informed Petitioner otherwise, stating that after speaking with the El Paso County Texas Sherrif's Office, “[t]his matter is not eligible for Interstate Agreement due to the fact the warrant is for Texas Only.” (ECF No. 1-2:2). Petitioner was advised that per the El Paso County Sheriff's office, he was to contact the Court to resolve the issue. (ECF No. 1-2:2).
Dissatisfied with that answer, Petitioner filed a Grievance on the issue, again requesting that the records department “initiate the necessary Interstate Agreement on Detainers (I.A.D.) Forms.” (ECF No. 1-3:2). Warden Bridges responded to Mr. Marrufo, once again explaining: “Per El Paso Texas Sherriff office this matter is not eligible for Interstate Agreement due to the warrant is for Texas only.” (ECF No. 1-3:4). Petitioner appealed the grievance denial, but the decision was affirmed. (ECF No. 1-4:2-4). On April 12, 2023, Mr. Marrufo filed the instant habeas Petition, alleging violations of his First, Fifth, and Fourteenth Amendment rights, owing to DOC's failure to initiate IADA paperwork which he believes would resolve the outstanding detainer issue and result in his immediate release from DOC custody. (ECF No. 1). Mr. Marrufo requests relief in the form of ordering Respondent to initiate the Interstate Agreement on Detainers Act paperwork. (ECF No. 1:8).
II. RESPONDENT'S MOTION TO DISMISS
Respondent has filed a Motion to Dismiss and brief in support arguing, in part, a lack of jurisdiction because Mr. Marrufo is not “in custody” for purposes of 28 U.S.C. § 2241. See ECF Nos. 10 & 11. The undersigned considers this portion of Respondent's motion under Fed.R.Civ.P. 12(b)(1). See Erlandson v. Northglenn Mun. Ct, 528 F.3d 785, 788 (10th Cir. 2008) ("Given the jurisdictional nature of the 'in custody' requirement, we will treat the district court's dismissal of [the plaintiff's] amended complaint as a dismissal under Fed.R.Civ.P. 12(b)(1) for lack of subject-matter jurisdiction.”). Even though Respondent moves to dismiss, it is Petitioner's burden to establish jurisdiction. See, e.g., Salzer v. SSM Health Care of Okla. Inc., 762 F.3d 1130, 1134 (10th Cir. 2014) ("The party invoking federal jurisdiction has the burden to establish that it is proper, and there is a presumption against its existence.” (internal quotation marks omitted)); U.S. ex rel. Hafter v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 (10th Cir. 1999) ("If jurisdiction is challenged, the burden is on the party claiming jurisdiction to show it by a preponderance of the evidence.”).
A motion to dismiss under Fed.R.Civ.P. 12(b)(1) makes either a "facial” or "factual” attack. Pueblo of Jemez v. United State., 790 F.3d 1143, 1148 n.4 (10th Cir. 2015). A facial attack "questions the sufficiency of the complaint,” and the Court "must accept the allegations in the complaint as true.” Id. A party making a factual attack "may go beyond the allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends.” Id. Thus, when a party makes a factual attack, the court may not "presume the truthfulness of the complaint's factual allegations” but has "wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts.” Id. Respondent makes a factual attack because she disputes Petitioner's assertion that he is subject to a Texas detainer-a fact Respondent contends is necessary to establish jurisdiction. As a result, the Court will consider the evidence presented to properly resolve the issue.
III. DISMISSAL OF THE PETITION-LACK OF JURISDICTION
A prerequisite to the exercise of habeas jurisdiction under 28 U.S.C. §2241 is that the petitioner be “in custody” at the time the petition is filed. Maleng v. Cook, 490 U.S. 488, 490-91 (1989). A prisoner serving a sentence in one state, against whom a detainer had been filed by another state, is sufficiently “in custody” pursuant to the detainer such that he may bring a habeas attack on the outstanding charge underlying the detainer. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, (1973). The parties dispute whether Mr. Marrufo is subject to a detainer from Texas state officials which would render him “in custody” for purposes of Section 2241 and trigger the IADA. To answer this question, the Court may examine the evidence submitted by both parties. See supra. Review of this evidence indicates that Petitioner is not "in custody” for purposes of Section 2241 and the IADA.
Initially, the undersigned takes judicial notice of the filings in Mr. Marrufo's El Paso County District Court Case No. 20120D01180. An examination of the docket sheet in that case reveals that an arrest warrant was issued on March 2, 2012. See State of Texas v. Fabian Villanueva Case No. 20120D01180 (EL Paso Co. Dist. Ct. Mar. 2, 2012). However, this record does not reveal that a detainer has been filed in that case. See Id. Following Petitioner's attempt to utilize the grievance process to resolve this issue, multiple prison officials informed Petitioner that pursuant to the El Paso Sherriff's Office, “the warrant [wa]s for Texas only,” exempting it from eligibility under the IADA. (ECF No. 1-2:1; 1-3:4). Additionally, internal DOC e-mail communications reveal that Amanda Callin, DOC Grievance Specialist, requested assistance regarding this issue from Tonia Dickerson, Manager in “Sentence Administration, Offender Records and Registries.” (ECF No. 11-12:1). In response to Ms. Callen's inquiry, Ms. Dickerson stated:
Based on Petitioner's insistence that he is subject to “an untried criminal detainer in el paso, TX. case number 20120D01180,” see ECF No. 1-1:2, the undersigned presumes that Petitioner is “Fabian Villanueva” as listed on the Texas state court docket sheet despite the different last name.
See United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising discretion “to take judicial notice of publicly-filed records in [this] court and certain other courts concerning matters that bear directly upon the disposition of the case at hand”).
The Interstate Agreement of Detainer process cannot be started unless the state issuing the warrant will also issue a detainer to the Oklahoma Department of Corrections. Once a detainer is placed, it must be a detainer on an untried case. A warrant and a detainer are different.
In this case Texas has not placed a detainer on the inmate with the ODOC. Therefore, it does not fall under the criteria for Interstate Agreement on Detainer. Texas may have a warrant for him on an untried case but they will not extradite from another state. Until they issue a detainer, ODOC cannot begin the IAD process.(ECF No. 11-12:1).
Based on the foregoing evidence, the Court should conclude that no detainer exists from the State of Texas. In cases where no detainer has been filed, the Tenth Circuit Court of Appeals and this Court has held that a district court lacks jurisdiction over a habeas petition because the petitioner is not “in custody” for purposes of 28 U.S.C. §2241. See Ball v. Scott, 1994 WL 562023, at *1-2 (10th Cir. 1994) (because the State of Missouri had not lodged a detainer with the Bureau of Prisons (where petitioner was incarcerated), the petitioner was not “in custody” for purposes of habeas relief challenging Missouri proceedings and the district court lacked jurisdiction to entertain petitioner's § 2241); Gilmore v. Hunte, No. CIV-20-521-D, 2020 WL 5521405, at *3 (W.D. Okla. Aug. 11, 2020) (recommending dismissal for lack of jurisdiction where no detainer had been filed), adopte, 2020 WL 5520570 (W.D. Okla. Sept. 14, 2020); Ross v. Sedgwick County Dist. Attorney's Office, 2007 WL 1577791, at *2 (W.D. Okla. May 31, 2007) (noting that it was “questionable” whether petitioner could demonstrate he was “in custody” on a state detainer when the record reflected that no state detainer existed).
While technically no detainer exists, a secondary issue is whether the warrant issued by the State of Texas is sufficiently analogous to a detainer to trigger initiation of the IADA. The Court should answer this question in the negative. The United States Supreme Court has stated that a detainer “puts the officials of the institution in which the prisoner is incarcerated on notice that the prisoner is wanted in another jurisdiction for trial upon his release from prison.” United States v. Maur, 436 U.S. 340, 358 (1978). Respondent argues that the Texas warrant does not qualify as a detainer because: (1) the warrant failed to “put [DOC] officials . . . on notice” that Petitioner was wanted in Texas upon his release from prison because Texas did not send the warrant to DOC officials and (2) Texas officials told DOC officials that due to the nature of the warrant, they would not extradite Petitioner from Oklahoma. (ECF No. 11:20-21).
Whether an out-of-state arrest warrant serves as a detainer remains unsettled. “Several courts have stated, without discussion, that an arrest warrant, in effect, may be treated as a detainer.” Payne v. Harpe, No. CIV-22-631-R, 2023 WL 2435668, at *4 (W.D. Okla. Feb. 2, 2023), adopted 2023 WL 2432037 (W.D. Okla. Mar. 9, 2023) (citing United States v. Richott, 627 F.Supp.2d 1075, 1079-80 (D.S.D. 2009) (collecting cases). Other courts have found arrest warrants are not detainers. See Prall v. Atty Gen. of R.I., 2010 WL 737646, at *7 (D.R.I. Mar. 1, 2010) (collecting cases and finding “there is no affirmative evidence that a detainer has been lodged” where Petitioner argued a warrant was a detainer). Mr. Marrufo argues that the warrant qualifies as a detainer based on the fact that it has been “published” “online” “in a manner in which Okla. Prison Officials . . . became aware of the arrest warrant.” (ECF No. 12-1:2. Based on the evidence presented, however, the Court should disagree.
As stated, a detainer “puts the officials of the institution in which the prisoner is incarcerated on notice that the prisoner is wanted in another jurisdiction for trial upon his release from prison.” See supra, Mauro. But here, Texas state officials made it clear that the State of Texas was not seeking to extradite Petitioner to Texas pursuant to the warrant. Accordingly, the Court should conclude that the warrant in Case No. 20120D01180 does not qualify as a detainer. Based on the fact that no actual detainer exists and the warrant does not qualify as a pseudo-detainer, the Court should: (1) conclude that Petitioner is not “in custody” for purposes of 28 U.S.C. § 2241 and (2) grant Respondent's Motion to Dismiss for lack of jurisdiction.
Based on the recommendation, the Court need not address Respondent's alternate argument regarding whether Petitioner had exhausted his state court remedies.
IV. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Court GRANT Respondent's Motion to Dismiss. If the Court adopts this recommendation, it is also recommended that the Court deny ECF No. 7, “Petitioner's Motion for Courts' Expedited Court's Holding,” as moot.
The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by October 13, 2023 in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The parties are further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
V. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.