Christensen v. Zavaras

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 17 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MARK ANDREW CHRISTENSEN,
Petitioner-Appellant,
v. No. 98-1096
(D.C. No. 96-D-1634)
ARISTEDES W. ZAVARAS, (D. Colo.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before BALDOCK, EBEL, and MURPHY , Circuit Judges.
After examining the briefs and 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); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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.
Petitioner Mark A. Christensen, an inmate appearing pro se, filed a
28 U.S.C. § 2241 petition for a writ of habeas corpus requesting the district court
to remove a detainer lodged against him by the state of Montana. The district
court denied his petition. We affirm.
Background
Petitioner was convicted of theft in Montana in 1993 and placed on
probation. In 1995, Petitioner was arrested and convicted in Colorado for an
unrelated theft charge. He is currently in the custody of the Colorado Department
of Corrections serving his sentence on that conviction. Shortly after his Colorado
arrest, Montana lodged a detainer against petitioner for violating the terms of his
Montana probation. 1
Petitioner states that he immediately waived extradition, and
that Montana initially dismissed the detainer but later reinstated it. 2
1
“A detainer is a request filed by a criminal justice agency with the
institution in which a prisoner is incarcerated, asking the institution either to hold
the prisoner for the agency or to notify the agency when release of the prisoner is
imminent.” Carchman v. Nash , 473 U.S. 716, 719 (1985). Here, the Montana
detainer requested the Colorado Department of Corrections to detain petitioner
upon his release because Montana intended to extradite petitioner for his
probation violation upon completion of his Colorado sentence.
2
Generally, when a detainer is filed against an out-of-state prisoner, the
prisoner may request disposition of the charge underlying the detainer and has
rights under the Interstate Agreement on Detainers Act (IADA) to be brought to
trial on that charge within specific time periods. See 18 U.S.C. App. § 2, Art. III.
However, the Supreme Court has held the IADA does not apply to detainers based
on probation violation charges. See Carchman , 473 U.S. at 725-26.
(continued...)
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Petitioner argues that Montana has never taken any action to dispose of the
Montana detainer and has shown no interest in extraditing him. He asserts he is
unable to participate in any rehabilitative programs in Colorado as a result of the
Montana detainer. He seeks the removal of the detainer in his § 2241 petition,
asserting that respondent’s failure to have the detainer against him removed
violates his due process rights.
The district court denied the § 2241 petition in May 1997, adopting the
magistrate judge’s recommendation that petitioner had failed to exhaust his
available state remedies because he never presented his claim to the Colorado or
Montana appellate courts. On appeal, petitioner contends he had exhausted his
state remedies because he filed petitions in Colorado and Montana seeking the
removal of detainer, which were denied.
Petitioner filed his habeas petition in Montana only after the district court’s
ruling; thus, this information was not before the district court. The record before
the district court showed that petitioner twice petitioned the Colorado state
district court in Larimer County seeking removal of the detainer action and had
filed a state habeas petition with the Colorado Supreme Court. The Colorado
Supreme Court denied petitioner’s habeas petition without prejudice to renew his
2
(...continued)
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petition if the Larimer County Court did not act upon his earlier petitions within
sixty days. Petitioner included information in his brief on appeal that the Larimer
County Court ruled on his pending petitions to remove the detainer on August 9,
1996, and October 16, 1996. However, petitioner does not indicate what action
the Larimer County Court took or whether he appealed those orders to the
Colorado Court of Appeals.
Discussion
We review de novo the district court’s legal conclusions in dismissing a
habeas petition. See Davis v. Executive Dir., Dep’t of Corrections , 100 F.3d 750,
756 (10th Cir. 1996), cert. denied , 117 S. Ct 1703 (1997). Although it is clear
that petitioner has failed to demonstrate that he has exhausted his available state
remedies because he has not indicated what action the Larimer County Court took
or whether he appealed those rulings, 3
we choose to affirm the district court’s
decision on the basis that petitioner has not alleged the violation of a federal
constitutional right. See Granberry v. Greer , 481 U.S. 129, 135 (1987) (noting
that state and federal interests are furthered by an affirmance on the merits,
3
No statutory exhaustion requirement applies to § 2241, but we have held
that “‘federal courts should abstain from the exercise of [§ 2241] jurisdiction if
the issues raised in the petition may be resolved either by trial on the merits in the
state court or by other state procedures available to the petitioner.’” Capps v.
Sullivan , 13 F.3d 350, 354 n.2 (10th Cir. 1993) (quoting Dickerson v. Louisiana ,
816 F.2d 220, 225 (5th Cir. 1987)).
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despite the lack of exhaustion, “if it is perfectly clear that the applicant does not
raise even a colorable federal claim.”).
Petitioner has not demonstrated how the existence of the Montana detainer
violates his federal rights. He has asserted no specific incident of prejudice
resulting from the existence of the unexecuted warrant, and his general allegation
that he is unable to participate in rehabilitative programs in the Colorado
Department of Corrections because of the detainer is conclusory and unsupported
by any evidence in the record. See McDonald v. New Mexico Parole Bd. , 955
F.2d 631, 634 (10th Cir. 1991). Even if petitioner were unable to participate in
rehabilitative programs because of the detainer, we noted in McDonald that “the
Supreme Court has rejected the concept that these kinds of adverse consequences
. . . trigger a due process concern.” Id. (citing Moody v. Daggett , 429 U.S. 78, 88
n.9 (1976) (holding that a prisoner in a federal penitentiary who is subject to a
federal parole-violation detainer is not constitutionally entitled to a prompt
parole-revocation hearing)); see also Carchman , 473 U.S. at 731 n.10 (“This
Court has never held, however, that a prisoner subject to a probation-violation
detainer has a constitutional right to a speedy probation-revocation hearing.”).
Therefore, petitioner has failed to present any evidence of a due process violation.
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The judgment of the United States District Court for the District of
Colorado is AFFIRMED. Petitioner’s motion to proceed in forma pauperis is
DENIED because petitioner failed to present a reasoned, nonfrivolous argument
on the law and merits. See 28 U.S.C. § 1915(a)(3); DeBardeleben v. Quinlan , 937
F.2d 502, 505 (1991).
Entered for the Court
David M. Ebel
Circuit Judge
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