United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior Judge
Applicant, Kenneth Wiggins, is incarcerated in a Georgia state prison. Mr. Wiggins filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Southern District of Georgia challenging a detainer lodged by the State of Colorado. The petition was transferred to this Court on July 17, 2015. A challenge to a state detainer normally is filed pursuant to 28 U.S.C. § 2241. See e.g. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 488 (1973). Mr. Wiggins filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 5) on this Court’s approved form on August 24, 2015. He has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
On September 28, 2015, Magistrate Judge Gordon P. Gallagher issued an Order (ECF No. 8) adding the Colorado Attorney General as a Respondent and directing the Respondents to file a Preliminary Response addressing the affirmative defenses of timeliness and/or exhaustion of state court remedies, if the Respondents intended to assert one or both defenses. Respondents filed a Preliminary Response on October 19, 2015. (ECF No. 14). Applicant was given an opportunity to file a Reply.
The Court construes the § 2241 Application liberally because Mr. Wiggins is not represented by counsel. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, this action will be dismissed.
On April 1, 2004, Applicant pled guilty in the Larimer County, Colorado, Combined Courts to disorderly conduct as an act of domestic violence and was sentenced to one year of probation. (ECF No. 14-1 at 3-4, 7). Thereafter, the prosecution twice filed motions to revoke his probation. (Id. at 6-7). The prosecution withdrew the first motion pursuant to a plea agreement in which Applicant pled guilty in a separate misdemeanor case. (Id.). The second probation revocation proceeding resulted in Applicant serving thirteen days in jail. (Id. at 6).
On October 18, 2005, the prosecution filed a third motion to revoke probation. (Id.). Applicant failed to appear at a revocation hearing scheduled for December 2, 2005, and the court issued a warrant for his arrest. (Id. at 5-6).
In July 2012, Applicant began serving an eight-year sentence in the custody of the Georgia Department of Corrections for the offenses of theft committed on September 17, 2009 and robbery committed on May 1, 2012. (ECF No. 14-5).
On August 4, 2015, Applicant filed a letter with the Larimer County Combined Courts asking the court to reach a disposition of the December 2005 arrest warrant because it was preventing his transfer from a Georgia state prison to a half-way house. (ECF No. 14-2). The prosecution declined to resolve the case by mail on the grounds that such a resolution would be inappropriate and the warrant was necessary to assure Applicant’s return to Colorado upon completion of his prison sentence. (ECF No. 14-3). On August 12, 2015, the state court denied Applicant’s request for the reasons stated in the prosecution’s response. (ECF No. 14-4).
In the § 2241 Application, Applicant claims that the State of Colorado’s failure to transfer him to Colorado to resolve his misdemeanor case violated the speedy trial provisions of the Interstate Agreement on Detainers Act (IAD). (ECF No. 5). He asks that the outstanding Colorado warrant be dismissed. (Id. at 7).
Respondents argue that the Court lacks subject matter jurisdiction over the § 2241 Application, pursuant to the doctrine of Younger abstention, and because Applicant fails to allege that he is in custody in violation of federal law. (ECF No. 14 at 5-10). Respondents further contend that the action is untimely under the AEDPA one-year limitation period, and that Applicant failed to exhaust available state court remedies prior to seeking federal habeas corpus relief. (Id. at 11-13).
A. In Custody Requirement
An applicant for federal habeas corpus relief must be “in custody.” 28 U.S.C. § 2241(c)(1)(3). The applicant must be “in custody” under the challenged conviction or sentence at the time his habeas petition is filed. See Maleng v. Cook, 490 U.S. 488, 490-91 (1989); Spencer v. Kemna, 523 U.S. 1, 7 (1998). The “in custody” requirement is jurisdictional. See McCormick v. Kline, 572 F.3d 841, 847-48 (10th Cir. 2009).
Mr. Wiggins meets the “in custody” requirement if he is subject to a state detainer that has been lodged with the Georgia authorities because the detainer may result in his confinement in a Colorado correctional institution in the future. See Braden, 410 U.S. at 488-89 (a petitioner who is subject to a state detainer seeks to challenge a future confinement and therefore, satisfies the “in custody” requirement). However, Respondent Colorado Attorney General represents that the outstanding Colorado arrest warrant was never lodged as a detainer with the Georgia authorities. (ECF No. 14 at 7). Regardless, Respondents concede, and the Court agrees, that Applicant meets the “in custody” requirement because the Colorado arrest warrant issued due to his failure to appear at his probation revocation hearing is still active. See, e.g., Cabrera v. Zavaras, No. 07-1342, 261 F. App’x. 102, 104 (10th Cir. Jan. 16, 2008) (unpublished) (petitioner who was caught illegally reentering the country and detained in Las Cruces, New Mexico, due to an active Colorado arrest warrant for his parole violation was in custody for purposes of § 2254(a)).
Furthermore, Applicant also meets the “in custody” requirement because he was free on a $2, 500 bond securing his appearance at the time he absconded (ECF No. 14-1 at 8-9). See Oyler v. Allenbrand, 23 F.3d 292, 293 (10th Cir. 1994) (concluding that petitioner was in custody where he filed his habeas petition while on bond pending appeal but before his sentence had been reduced to probation and before he began to serve that probation); see also United States ex rel. Grundset v. Franzen, 675 F.2d 870, 872 (7th Cir.1982) (custody requirement satisfied by person on bail pending final disposition of his case); Marden v. Purdy, 409 F.2d 784, 785 (5th Cir. 1969) (that applicant was free on a cash bond when he filed his petition “was a sufficient restraint on this applicant’s liberty to support habeas jurisdiction”).
The Court finds that Applicant was “in custody” for the purposes of challenging the outstanding Colorado arrest warrant charging him with failure ...