Harris v. Kentucky

Filing 3

ORDER DISMISSING CASE. Signed by Judge David R. Herndon on 4/11/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CORNELIUS HARRIS,
No. 12201-033,
Petitioner,
vs.

Case No. 15-cv-291-DRH

COMMONWEALTH of KENTUCKY,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner, currently incarcerated in the USP-Marion, brings this habeas
corpus action pursuant to 28 U.S.C. § 2241. He is seeking an order returning
him to Kentucky on a writ of habeas corpus ad prosequendum, in connection with
an outstanding warrant for a Kentucky parole violation.
This case is now before the Court for a preliminary review of the petition
pursuant to Rule 4 of the Rules Governing Section 2254 Cases in United States
District Courts. Rule 4 provides that upon preliminary consideration by the
district court judge, “[i]f it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the district court, the judge
must dismiss the petition and direct the clerk to notify the petitioner.” Rule 1(b)
of those Rules gives this Court the authority to apply the rules to other habeas

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corpus cases, such as this action under 28 U.S.C. § 2241.

After carefully

reviewing the petition, the Court concludes that this action is subject to dismissal.

I.

The Petition

According to petitioner, he pled guilty to two drug offenses in the Circuit
Court of Daviess County, Kentucky.

After a period of incarceration, he was

released on parole on both convictions on June 23, 2009 (Doc. 1, p. 1). While
still on parole, he was charged with the federal drug conspiracy offense for which
he is now in custody and serving a 96-month sentence. United States v. Harris,
Case No. 10-cr-010 (W.D. Ky., filed April 7, 2010).

The Commonwealth of

Kentucky now has an outstanding parole violation warrant against petitioner.
According to a letter attached to the petition, Kentucky will hold a final
disposition hearing to determine petitioner’s “future parole eligibility, if any” after
he has satisfied his federal sentence (Doc. 1, p. 5).
Rather than wait until his release from federal custody, petitioner seeks to
be returned temporarily to Kentucky now, in order to resolve Kentucky’s
disposition of the parole violation matter. He invokes the Interstate Agreement on
Detainers Act (“IADA”), 18 U.S.C. § App. 2 § 2, as a vehicle for the relief he seeks.
He states that he is currently enrolled in an intensive drug and criminal-behaviormodification treatment program, which requires “after-care placement” in a
community correctional center. 1 He is concerned that his participation in this

1

The Court notes that, if petitioner’s custodian determines that he is entitled to serve a portion of
his sentence in a federally-operated community correctional center after completing his treatment
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treatment program would be prematurely terminated if he is required to return to
Kentucky to be placed on regular parole. He hopes to have his Kentucky parole
reinstated and run concurrently with his federal supervised release.
II.
While

petitioner’s

goal

to

Discussion
complete

his

rehabilitation

program

is

commendable, his reliance on the IADA is misplaced. A prisoner may request
final disposition of an outstanding criminal matter pursuant to the IADA only
where he is facing an “untried indictment, information, or complaint” in the
receiving state. 18 U.S.C. § App. 2, § 2, Art. I; Art. III. However, a warrant for a
parole violation, which by definition arises only where the prisoner has already
been convicted and sentenced for the offense, is not an “untried indictment,
information, or complaint.” According to the Supreme Court,
The language of the Agreement therefore makes clear that the phrase
‘untried indictment, information or complaint’ in Art. III [of the IADA]
refers to criminal charges pending against a prisoner. A probationviolation charge, which does not accuse an individual with having
committed a criminal offense in the sense of initiating a prosecution,
thus does not come within the terms of Art. III.
Carchman v. Nash, 473 U.S. 716, 725 (1985).
A parole violation is likewise not a pending criminal charge that would lead
to prosecution on a new criminal offense. Instead, the issue to be determined is
whether the offender violated the terms of his release, and whether he should be
returned to custody to finish serving his previously-imposed sentence. Therefore,

program, he would still be in federal custody at that time. The Bureau of Prisons has discretion to
place a prisoner in a Residential Re-entry Center to serve the last several months of his sentence, if
a determination is made that such a placement would assist him to prepare for reentry into the
community. See 18 U.S.C. § 3621(b); 18 U.S.C.A. § 3624(c)(1).
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under the Supreme Court’s analysis in Carchman, the IADA does not apply to a
pending parole-violation warrant.

See Carchman, 473 U.S. at 725-26 (IADA

refers to criminal charges pending against a prisoner and does not apply to a
detainer based on a pending probation-violation charge); see also Moody v.
Daggett, 429 U.S. 78, 85, 87 (1976) (federal parolee imprisoned for crime
committed while on parole was not constitutionally entitled to prompt hearing on
parole violator warrant); Noble v. Scibana, Case No. 04-C-514-C, 2004 WL
2011440, at *3 (W.D. Wis. Sept. 3, 2004) (the IADA does not apply to detainers
based on parole or probation-violation charges).
The IADA does not authorize petitioner to request a timely disposition of
his pending parole violation warrant. Therefore, his attempt to seek relief under
28 U.S.C. § 2241 on the basis of the IADA must fail, and the petition shall be
dismissed with prejudice.
III.

Filing Fee

When petitioner filed this action, he did not pay the $5.00 filing fee, nor did
he file a motion for leave to proceed in forma pauperis (“IFP”). He was instructed
by the Clerk of Court to take one of these actions no later than April 15, 2015
(Doc. 2), and was provided with a blank form motion. Petitioner incurred the
obligation to pay the filing fee when he initiated this action; the obligation is not
extinguished by the dismissal of this case. See Lucien v. Jockisch, 133 F.3d 464,
467-68 (7th Cir. 1998); Newlin v. Helman, 123 F.3d 429, 434 (7th Cir. 1997). If
petitioner fails to either pay the fee or file a properly completed motion for leave

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to proceed IFP by the previously provided deadline, he may face sanctions
including a limitation on his ability to file future actions in this Court.

IV.

Disposition

For the reasons explained above, the § 2241 petition is summarily
DISMISSED with prejudice.
If petitioner wishes to appeal this dismissal, he may file a notice of appeal
with this court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(4).
A motion for leave to appeal in forma pauperis should set forth the issues
petitioner plans to present on appeal.

See FED. R. APP. P. 24(a)(1)(C).

If

petitioner does choose to appeal and is allowed to proceed IFP, he will be liable
for a portion of the $505.00 appellate filing fee (the amount to be determined
based on his prison trust fund account records for the past six months)
irrespective of the outcome of the appeal. See FED. R. APP. P. 3(e); 28 U.S.C.
§ 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan
v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, 133 F.3d
464, 467 (7th Cir. 1998). A timely motion filed pursuant to Federal Rule of Civil
Procedure 59(e) may toll the 30-day appeal deadline. 2

It is not necessary for

petitioner to obtain a certificate of appealability from this disposition of his
§ 2241 petition. Walker v. O’Brien, 216 F.3d 626, 638 (7th Cir. 2000).

2

A Rule 59(e) motion to alter or amend a judgment must be filed no later than 28 days after the
entry of the judgment. FED. R. CIV. P. 59(e).
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The Clerk is DIRECTED to close this case and enter judgment accordingly.

Digitally signed by
David R. Herndon
Date: 2015.04.11
17:29:45 -05'00'

IT IS SO ORDERED.

United States District Judge

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