Opinion
Civil No. 01-CV-71565-DT
June 18, 2001
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS
Roberto Martinez, (petitioner), currently incarcerated at the Federal Correctional Institution in Milan, Michigan, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In his petition, filed pro se, petitioner asks that a pending criminal charge against him in Hidalgo County, Texas be dismissed pursuant to the Interstate Agreement on Detainers Act. For the reasons stated below, the petition for writ of habeas corpus is DENIED.
I. PROCEDURAL HISTORY
In October of 1998, petitioner was arrested by the Texas Department of Highway Safety and was charged with possession of marijuana in Hidalgo County, Texas. Petitioner was released on bond during the pendency of this case.
On November 10, 1998, petitioner was arrested by federal authorities on a charge of conspiracy to distribute methamphetamine. Petitioner was convicted of this charge in the Southern District of Iowa on July 16, 1999, and was sentenced to two hundred and thirty five (235) months in prison.
On August 31, 1999, while petitioner was incarcerated in the Federal Correctional Institution in Oxford, Wisconsin, the Inmate Systems Manager sent a notice for a "detainer action letter" to the Hidalgo County District Attorney to request information concerning the possession of marijuana charge that remained pending against him in Texas. This request, as well as a second request, went unanswered by Texas authorities. However, after petitioner was transferred to his current place of incarceration at the Federal Correctional Institution in Milan, Michigan, a third request was sent by federal authorities concerning the status of the pending charges against petitioner in Texas. On July 27, 2000, the Hidalgo County District Attorney faxed a letter to the records office at the Federal Correctional Institution in Milan, in which the district attorney's office indicated that it did not wish to place a detainer against petitioner at this time.
In October of 2000, petitioner filed a "Motion to Dismiss Indictment based on violations of the Interstate Agreement on Detainers Act" in the Hidalgo County Circuit Court. Petitioner claims that the circuit court has failed to respond to the motion in any way. Petitioner has now filed a petition for writ of habeas corpus, in which he asks the court to dismiss this outstanding criminal charge against him under the one hundred and eighty (180) day rule of Article III(a) of the Interstate Agreement on Detainers Act.
II. DISCUSSION
Article III(a) of the Interstate Agreement on Detainers Act ("I.A.D.") provides that if a receiving state or jurisdiction has an outstanding information or indictment against a person serving a sentence in another party state or jurisdiction (sending state or jurisdiction), and if the receiving state or jurisdiction has issued a detainer (defined as any notification to the sending state that the receiving state or jurisdiction wishes to try the defendant upon an outstanding information), then the defendant must be tried within 180 days (with certain exceptions) after he is delivered to the custody of the receiving state or jurisdiction. See Browning v. Foltz, 837 F.2d 276, 283 (6th Cir. 1988)
The petition for writ of habeas corpus must be dismissed for several reasons. First, petitioner's own exhibits show that the State of Texas has declined to place a detainer against him. The provisions of the I.A.D. are applicable only when the participating jurisdiction, having untried charges against a prisoner, first lodges a detainer with the participating jurisdiction where the prisoner is incarcerated. United States v. Dixon, 592 F.2d 329, 333 (6th Cir. 1979). Only when the government files a detainer against a defendant does it become bound by the I.A.D.'s provisions. United States v. Mauro, 436 U.S. 340, 364 (1978). Because a detainer was never filed against petitioner in this case, the protections of the I.A.D., including the 180 day rule, were never triggered. See United States v. Beard, 41 F.3d 1486, 1489 (11th Cir. 1995) In addition, petitioner has no federal constitutional right to have a detainer lodged against him. See Russo v. Johnson, 129 F. Supp.2d 1012, 1020 (S.D. Tex. 2001). Thus, the court cannot order the State of Texas to place a detainer on petitioner simply to invoke the provisions of the I.A.D.
Secondly, petitioner has not yet exhausted his state court remedies with respect to this claim. In the absence of "special circumstances", federal habeas corpus relief is not available to review the merits of an affirmative defense to a state criminal charge prior to a judgment of conviction by a state court. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 489 (1973). Although federal courts have jurisdiction to hear pretrial habeas corpus petitions, a federal court should normally abstain from exercising this jurisdiction to consider a pretrial habeas petition if the issues raised in the petition may be resolved either by trial in the state courts or by other state procedures available to petitioner. Atkins v. People of the State of Michigan, 644 F.2d 543, 545-46 (6th Cir. 1981). Where a habeas petitioner's claims, if successful, would be dispositive of pending state criminal charges, the claims may be exhausted only by presenting the issues at the trial in state court, including claims that provide an affirmative defense to the criminal charges and claims that would "abort a state criminal proceeding, dismiss an indictment, or prevent a prosecution." Moore v. United States, 875 F. Supp. 620, 622 (D. Neb. 1994) The practical effect of this exhaustion requirement is that review of dispositive claims in habeas is not available prior to a state trial. Id.
In the present case, petitioner has a pending motion to dismiss the indictment under the 180 day rule of the I.A.D. in front of the trial court in Texas. Because this motion to dismiss is still pending, the court should refrain from adjudicating the merits of petitioner's habeas claim. See Schofs v. Warden, FCI, Lexington, 509 F. Supp. 78, 82 (E.D. Ky. 1981) (where a habeas petitioner has not properly exhausted his state judicial remedies with respect to his motion to dismiss state charges underlying a detainer against him, the district court would refrain from considering the merits of petitioner's claims concerning those charges).
Finally, the court is unable to provide petitioner with the relief he seeks. Speedy trial considerations can be a basis for federal pre-trial habeas relief, but only where the petitioner is seeking to force the state to bring him to trial; they are not a basis for dismissing a pending state criminal charge outright. Atkins, 644 F.2d at 547; Hirsch v. Smitley, 66 F. Supp.2d 985, 986-987 (E.D. Wis. 1999). In this case, petitioner does not ask the court to force a trial or sentencing in the state court in order to protect his constitutional right to a speedy trial. Rather, he asks the court to dismiss this pending state criminal case outright, something which the court does not have power to do. Hirsch, 66 F. Supp.2d at 987.
III. CONCLUSION
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED.