Brewer v. Arkansas, State of et al

Filing 22

RECOMMENDED DISPOSITION that 2 Petition for Writ of Habeas Corpus filed by Keith D. Brewer, and the 6 Amended Petition be dismissed without prejudice; and that 11 Motion for Order be denied as moot; Objections to RD due no later than 11 days from the date you receive the Recommended Disposition. Signed by Magistrate Judge Beth Deere on 11/23/09. (vjt)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION K E I T H D. BREWER, A D C # 143434 V S. NO. 5:09-CV-00302-SWW-BD PETITIONER

S T A T E OF ARKANSAS, et al. R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections

R ESPO N D EN TS

T h e following recommended disposition has been sent to United States District J u d g e Susan Webber Wright. Any party may file written objections to this re c o m m e n d a tio n . Objections should be specific and should include the factual or legal b a s is for the objection. If the objection is to a factual finding, specifically identify that f in d in g and the evidence that supports your objection. An original and one copy of your o b je c tio n s must be received in the office of the United States District Court Clerk no later th a n eleven (11) days from the date you receive the Recommended Disposition. A copy w ill be furnished to the opposing party. Failure to file timely objections may result in w a iv e r of the right to appeal questions of fact. M a il your objections and "Statement of Necessity" to: C le rk , United States District Court E a s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325 1

II.

B ackground: K e ith D. Brewer, formerly incarcerated in the Cummins Unit of the Arkansas

D e p a rtm e n t of Correction ("ADC"), brought this 28 U.S.C. § 2254 petition for writ of h a b e a s corpus (docket entry # 2) on September 24, 2009, challenging a detainer lodged a g a in s t him by a state court in Desoto County, Mississippi. Petitioner filed an amended p e titio n (#6) naming Respondent on September 29, 2009, and filed a supplement to his a m e n d e d petition (#8) on October 8, 2009. The Court ordered the Amended Petition s e rv e d on Respondent on October 19, 2009. In his response (#15), Respondent asserts that the petition should be dismissed as m o o t. In support of his response, Respondent attached documentation showing that P e titio n e r was extradited to Desoto County, Mississippi on November 6, 2009. For the re a s o n s that follow, the petition, amended petition and motion for order must be d is m is s e d as moot. III. M is s is s ip p i Proceedings: O n November 14, 2008, a grand jury in the Circuit Court of Desoto County, M is s is s ip p i, handed down an indictment against Petitioner charging him with attempting to commit felony shoplifting. On the same day, the district attorney for Desoto County f ile d a Writ of Capias in the Circuit Court of Desoto County commanding the Sheriff to ta k e Mr. Brewer into custody to answer for the indictment. (#15-3 at pp. 8) On May 11, 2 0 0 9 , Desoto County, Mississippi lodged a detainer against Mr. Brewer.

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The next week, on May 18, 2009, the Circuit Court of Hot Spring County, A rk a n sa s , entered an amended judgment and commitment order sentencing Petitioner to s ix ty months in the Arkansas Department of Correction. (#15-2 at p. 2) The Desoto C o u n t District Attorney filed an application for requisition with the Governor of M is s is s ip p i claiming that Mr. Brewer was in the custody of the Arkansas Department of C o rre c tio n and asking that Mr. Brewer be returned to Desoto County, Mississippi for tria l. (#15-3 at pp. 6-7) On August 25, 2009, the Governor of Mississippi sent the Governor of Arkansas a re q u e s t for interstate rendition asking that Mr. Brewer be returned to the State of M is s is s ip p i for prosecution and service of any sentence that might be imposed. Shortly th e re a f te r, the Governors entered into an executive agreement. and the Governor of A rk a n sa s issued a writ ordering Mr. Brewer returned to Mississippi for trial. (#15-3 at p p . 10-11, #15-4) O n October 8, 2009, Petitioner filed a petition for writ of habeas corpus in the C irc u it Court of Lincoln County, Arkansas, challenging his extradition to Mississippi. Petitioner claimed that the extradition violated his "federal and state constitutional rights o f due process" because he was not a fugitive. (#15-5 at p. 4) The court held a hearing o n the petition on October 23, 2009. On October 30, 2009, the court entered an order f in d in g that Petitioner was a fugitive and ordering the ADC to extradite Petitioner to the

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State of Mississippi. (#15-5 at pp. 1-2) On November 6, 2009, the ADC released Mr. B re w e r on the Mississippi detainer. (#15-6 at pp. 1-3) IV . D is c u s s io n : In this petition, Petitioner claims that in December, 2008, he asserted his right to a s p e e d y trial by sending a motion to the Desoto County Circuit Court. Petitioner claims m o re than nine months passed after his request for a speedy trial, but that the Desoto C o u n ty Circuit Court "made no effort in good-faith to secure his presence for trial." (#3 a t p. 3) Petitioner claims the delay has had a "prejudicial effect against the petitioner's lib e rty interest." He also claims the Desoto County Circuit Court has violated his Sixth A m e n d m e n t right to a speedy trial. (#3 at p. 4) Petitioner claims he is entitled to " d is m is s a l of the [attempted shoplifting] charge against him with prejudice" and requests th is Court "enter an order dismissing his [Mississippi] detainer with prejudice." (#2 at p. 3 , #3 at p. 4, #6 at p. 3) U n d e r Article III, § 2, of the United States Constitution, "the exercise of judicial p o w e r depends upon the existence of a case or controversy." DeFunis v. Odegaard, 416 U .S . 312, 316 (1974). This means that a petitioner must show that he has suffered, or is th re a te n e d with, an actual injury traceable to the defendant which is likely to be redressed b y a favorable judicial decision. Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 983 (1 9 9 8 ). If a federal petitioner cannot show an existing case or controversy through all the

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stages of his litigation, his case becomes moot, depriving the court of its power to act b e c a u s e there is no available remedy, even if the court were disposed to act. Id. at 18. N o w that the Petitioner has been transferred to the custody of authorities in Desoto C o u n ty, Mississippi, pursuant to his extradition, even if the Court were to rule in P e titio n e r's favor on his claims, such a holding would have no effect. Mr. Brewer is no lo n g e r in Respondent's custody, and there is no longer a pending detainer. His claims re g a rd in g the detainer are, therefore, moot. See Beachem v. Schriro, 141 F.3d 1292, 1 2 9 3 -9 4 (8th Cir. 1998) (challenge to detainer is moot once detainer removed); Kearns v. T u rn e r , 837 F .2d 336, 338 (8th Cir. 1988) (prisoner's challenge to detainer was moot w h e re he had already been transferred and sentenced pursuant to that detainer); see also C a r n e y v. Clark, 172 F.3d 52 (7th Cir. 1999) (holding an Interstate Agreement on D e ta in e rs Act claim becomes moot when the detainer is executed and the prisoner is e x tr a d ite d ) . There is an exception to the mootness doctrine if a claim is "capable of repetition, ye t evading review." Spencer, 523 U.S. at 17. This exception applies, however, only w h e re "there is a reasonable expectation that the same complaining party will be subject to the same action again." Id. In this case, there is no expectation that Petitioner will face th is same situation again or that, if he does, he will be unable to seek relief. Moreover, P e titio n e r has not alleged any continuing collateral consequences from the detainer.

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Beachem, 141 F.3d at 1294 (no collateral consequences presumed or demonstrated from re m o v e d detainer).1 F u rth e r, as a state prisoner, Mr. Brewer is subject to the provisions governing 28 U .S .C . § 2254, and, therefore, the district court in which the petition is filed must have p e rs o n a l jurisdiction "upon the person who holds [the petitioner] in what is alleged to be u n la w f u l custody." Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 494- 95, 9 3 S.Ct. 1123 (1973). In Braden, an Alabama inmate petitioned the Western District of K e n tu c k y for a writ giving him relief from a Kentucky indictment and interstate detainer lo d g e d against him. The Court upheld the jurisdiction of the Kentucky federal court b e c a u s e petitioner's Alabama custodian was acting "as agent for the demanding State, a n d the custodian State is presumably indifferent to the resolution of the prisoner's attack o n the detainer." 410 U.S. at 499- 500. By contrast, in this case, Petitioner alleges that M is s is s ip p i officials improperly indicted him. Mississippi, therefore, is not at all in d if f e re n t to Petitioner's claim. Therefore, this Court's lack of personal jurisdiction over P e titio n e r's current custodian requires dismissal of this action.

There are other exceptions to the mootness doctrine; however, these exceptions a re not applicable to the instant case. See Hohn v. United States, 262 F.3d 811, 817 (8th C ir. 2001) (other exceptions are where the defendant voluntarily ceases an allegedly ille g a l practice but is free to resume it at any time, or when a case is a properly certified c la s s action suit), vacated on other grounds, 537 U.S. 801 (2002). 6

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V.

C o n c lu s io n F o r the foregoing reasons, the Court recommends that the District Court dismiss

w ith o u t prejudice Petitioner's petition for writ of habeas corpus (#2) and amended p e titio n (#6) and deny the motion for order (#11) as moot. D A T E D this 23rd day of November, 2009.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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