Julien Garcon v. Palm Beach Co. Sheriff's Office , 291 F. App'x 225 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Aug. 22, 2008
No. 07-15294 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-80888-CV-DTKH
JULIEN GARCON,
Plaintiff-Appellant,
versus
PALM BEACH COUNTY SHERIFF'S OFFICE,
FLORIDA DEPARTMENT OF CORRECTIONS,
RICK BRADSHAW,
U.S. MARSHALS (Detainer),
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 22, 2008)
Before WILSON, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Julien Garcon, a federal prisoner proceeding pro se, appeals the district
court’s dismissal of his petition for habeas relief, 28 U.S.C. § 2241.1 After a
thorough review, we affirm.
While a pre-trial detainee, Garcon filed the instant habeas petition arguing
(1) his indictment was invalid; (2) the court lacked jurisdiction to hear his criminal
case; (3) counsel had been ineffective; (4) the grand jury was selected in a racially
discriminatory manner; (5) his arrest warrant was not supported by probable cause;
and (6) there were violations of the Speedy Trial Act. Upon the magistrate judge’s
recommendation, the district court dismissed the petition because Garcon had not
been brought to trial as of the date of filing and he was represented by counsel in
his up-coming criminal case. Garcon now appeals.
The availability of habeas relief under § 2241 is a question of law that we
review de novo. Sawyer v. Holder, 326 F.3d 1363, 1364 n.4 (11th Cir. 2003). We
note that since the filing of the instant petition, Garcon has been convicted of
possession of a firearm by a convicted felon and was scheduled for sentencing.
Upon review, we conclude that the district court properly dismissed the
1
The district court construed the habeas petition as brought under 28 U.S.C. § 2254
despite the fact that Garcon was a federal detainee at the time. Because Garcon was a federal
pre-trial detainee, the petition should have been construed as brought pursuant to 28 U.S.C.
§ 2241. 28 U.S.C. § 2241(c)(1); Hughes v. Att’y Gen. Of Fla., 377 F.3d 1258, 1261-1261 (11th
Cir. 2004).
2
petition. The claims Garcon sought to raise are properly brought during his
criminal case and subsequent direct appeal, should he choose to file one.
Therefore, the instant petition was premature and was due to be dismissed.
AFFIRMED.
3