Hutson v. Collins ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-20600
USDC No. CA-H-94-1957
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JAMES GLENN HUTSON,
Petitioner-Appellant,
versus
WAYNE SCOTT, Director,
Texas Department of Criminal Justice,
Institutional Division;
JACK W. DIEKEN, Sheriff;
ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,
Respondents-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
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November 30, 1995
Before WIENER, PARKER and DENNIS, Circuit Judges.
PER CURIAM:*
James Glenn Hutson has filed a motion for a certificate of
probable cause (CPC) to appeal the district court's dismissal of
his petition for habeas corpus. Because Hutson is not attacking
a state-court conviction, but a detainer lodged on charges
pending in Oklahoma, his petition is more properly construed as
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-20600
-2-
arising under 28 U.S.C. § 2241 rather than under § 2254. See
Dickerson v. State of La., 816 F.2d 220, 224 (5th Cir.), cert.
denied, 484 U.S. 956 (1987); see also Braden v. 30th Judicial
Circuit Court of Ky., 410 U.S. 484, 488 (1972). A CPC is not
necessary for the appeal because "the detention complained of
[does not] arise[] out of process issued by a State court." Fed.
R. App. P. 22(b). Accordingly, Hutson's motion for a CPC is
DENIED as unnecessary. However, because neither of the reasons
for dismissal given by the district court were appropriate, we
VACATE the court's dismissal and remand the case for further
proceedings. See Clark v. Williams, 693 F.2d 381, 381-82 (5th
Cir. 1982).
A person in custody in one state against whom another state
has a detainer may attack the interstate detainer by applying for
federal habeas corpus in the detaining state. Gibson v.
Klevenhagen, 777 F.2d 1056, 1058 (5th Cir. 1985)(citing Braden,
410 U.S. at 488-89). In Braden, charges were pending in Kentucky
against the petitioner who was incarcerated in Alabama. Braden,
410 U.S. at 486. The petitioner attacked Kentucky's failure to
execute the interstate detainer it had filed. Id. at 487. In
determining that the petitioner was in the proper forum, the
Supreme Court reasoned that the Alabama warden was acting as the
agent of Kentucky authorities in holding the petitioner pursuant
to the Kentucky detainer. Id. at 489 n.4. Thus, the Texas
official holding Hutson pursuant to the Oklahoma detainer is
acting as an agent of Oklahoma, and the district court had
jurisdiction to consider the petition.
No. 95-20600
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Moreover, Hutson's petition was not filed in the wrong
venue. Hutson currently is assigned to TDCJ's Huntsville Unit
which is located in Walker County, Texas, and is within the
Southern District of Texas. See 28 U.S.C. § 124(b)(2); see also
United States v. Gabor, 905 F.2d 76, 78 (5th Cir. 1990)(§ 2241
petition is properly filed in district in which petitioner is
incarcerated).
Hutson's original petition, insofar as it requested only
that he be transferred to TDCJ/ID so that the detainer could be
executed, was mooted when Hutson was transferred. However, the
district court should have construed Hutson's "motion for default
summary judgment and objection to an extension of time and
objection to venue change" as a motion to amend Hutson's original
petition and granted it. See Sherman v. Hallbauer, 455 F.2d at
1236, 1242 (5th Cir. 1972)(memo opposing summary judgment raised
a new issue and should have been treated as a motion to amend and
granted). In that pleading, filed after Hutson was transferred
to TDCJ/ID, Hutson continued to challenge the Oklahoma detainer.
Thus, there remains a viable cause of action based on the alleged
violation of the IADA. See Gibson, 777 F.2d at 1058. It is
unclear from the record, however, whether the Oklahoma detainer
is still valid. Hutson's pleadings and some of the attachments
thereto suggest that the detainer was withdrawn when he was
transferred from the Taylor County jail to Huntsville and that it
was not reissued. The respondent averred in the district court
that the detainer had been withdrawn.
No. 95-20600
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The judgment is VACATED and the case REMANDED to the
district court to determine: (1) whether the Oklahoma detainer
is still valid to the extent that Hutson is "in custody" because
of it; (2) if Hutson is in custody, whether he has exhausted
state remedies; and (3) the merits of Hutson's challenge to the
Oklahoma detainer under the IADA, if he has exhausted remedies.
See Braden, 410 U.S. at 489 n. 4 (discussing the "in custody"
requirement); and Gibson, 777 F.2d at 1058 (discussing exhaustion
requirements for IADA claim).