Baird v. Caroche ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
April 14, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
RANDOLPH STEPHEN BAIRD,
Plaintiff-Appellant, No. 05-1472
v. (D.C. No. 05-Z-1110)
T. ANTHONY CAROCHE, (D. Colo.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and LUCERO, Circuit Judges.
After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2). The case is therefore
ordered submitted without oral argument.
Appellant, a prisoner appearing pro se, seeks relief pursuant to 42 U.S.C. §
1983. Appellant is currently incarcerated at the Buena Vista, Colorado,
Correctional Facility. He is attacking a probation-violator warrant lodged against
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
him as a detainer by the State of South Carolina. Appellant “asserts that he has
attempted to have the detainer removed, apparently pursuant to the Interstate
Agreement on Detainers Act (IADA).” Order and Judgment of Dismissal, 2 (D.
Colo. Oct. 21, 2005). He claims that “the presence of the detainer affects his
current conditions of confinement because it denies him the opportunity to
participate in programs available to other prisoners” and that his South Carolina
sentence should be served concurrently with his Colorado sentence. Id. The
district court dismissed Appellant’s complaint as legally frivolous. Id. at 3.
Appellant’s detainer, for an outstanding probation-violation charge, is not
the type covered by the IADA, and his reliance upon it is “misplaced.” Id. The
court stated that “[t]he IADA, by its terms, only applies to detainers based upon
outstanding criminal charges, i.e., an untried indictment, information, or
complaint, and, therefore, is not applicable to [Appellant’s] probation violator
detainer.” Id. The Supreme Court explained in Carchman v. Nash, 473 U.S. 716,
725-26 (1985):
A probation-violation charge, which does not accuse an
individual with having committed a criminal offense in the
sense of initiating a prosecution, thus does not come within the
meaning of Art. III. Although the probation violation-
violation charge might be based on the commission of a
criminal offense, it does not result in the probationer’s being
“prosecuted” or “brought to trial” for that offense. . . . [T]he
probation-violation charge results in a probation-revocation
hearing, a proceeding to determine whether the conditions of
probation should be modified or the probationer should be
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resentenced, at which the probationer is entitled to less than
the full panoply of due process rights accorded a defendant at a
criminal trial.
The district court also found that Appellant “is not entitled to a probation-
violation hearing until he is taken into custody pursuant to the probation-violation
warrant.” Id. (citing McDonald v. New Mexico Parole Bd., 955 F.2d 631, 633
(10th Cir. 1991)). Finally, the court stated that “[t]he mere fact that the presence
of the state detainer may affect the present conditions of [Appellant’s]
confinement does not entitle him to relief.” Id. (citing Sable v. Ohio, 439 F.
Supp. 905, 906 (W.D. Okla. 1977)).
We now deny Appellant’s Application for Appointment of Counsel. We
grant Appellant’s Motion for Leave to Proceed on Appeal Without Prepayment of
Costs and Fees, and we remind him of his obligation to continue to make partial
payments of his filing fee until paid in full. We have carefully reviewed
Appellant’s brief, the district court’s disposition, and the record on appeal. We
are in accord with the district court’s dismissal as legally frivolous, and, for
substantially the same reasons set forth by the district court in its October 21,
2005 order, we AFFIRM the district court’s dismissal of Appellant’s complaint.
Entered for the Court
Monroe G. McKay
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Circuit Judge
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