United States v. Dean , 654 F. App'x 375 ( 2016 )

FILED
United States Court of Appeals
Tenth Circuit
June 6, 2016
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-5104
(D.C. No. 4:06-CR-00099-GKF-1)
JOSEPH EUGENE DEAN, (N.D. Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Joseph Dean, a state prisoner proceeding pro se, appeals from an order of
the United States District Court for the Northern District of Oklahoma. The
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
district court denied Dean’s request that he be immediately brought before the
court so a hearing could be held on whether to revoke his supervised release.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms. 1
Dean’s appeal presents arguments factually and legally indistinguishable
from the arguments presented in United States v. Romero, 511 F.3d 1281, 1283-84
(10th Cir. 2008). In that case, we held a state inmate subject to a federal detainer
for the potential revocation of supervised release had “no legal right to receive an
immediate hearing on their supervised release revocation.” Id. at 1284. This was
true even though the inmate in Romero claimed, as does Dean, that the pending
federal detainer prejudiced him because it precluded participation in “treatment
and other prison programming.” Id. Thus, Romero forecloses Dean’s claim he is
entitled to a resolution of his federal supervised release status prior to the
completion of his state sentence. Id. at 1284-85.
Dean’s motions to proceed on appeal in forma pauperis and to file his
optional reply brief out of time are GRANTED. The district court’s order
1
No matter how construed, this court has appellate jurisdiction over Dean’s
appeal. It is possible to construe Dean’s motion as a habeas-based (i.e., 28 U.S.C.
§ 2241) challenge to a federal detainer lodged with state authorities. See Braden
v. 30th Judicial Circuit Court, 410 U.S. 484, 488-89 (1973). So construed, Dean
does not need a certificate of appealability to proceed on appeal. Montez v.
McKinna, 208 F.3d 862, 867 n.6 (10th Cir. 2000) (“[A] state prisoner seeking to
challenge a detainer filed by a federal agency does not need a COA to proceed on
appeal.”). It is also possible to construe Dean’s motion as a request for relief
filed directly in the context of Dean’s federal criminal case. See United States v.
Romero, 511 F.3d 1281, 1283-84 (10th Cir. 2008). So construed, the denial of
relief is appealable under the collateral order doctrine. Id.
-2-
denying Dean’s request for an immediate hearing on his supervised release
revocation is AFFIRMED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-3-