Drake v. Kansas, State of

Filing 5

MEMORANDUM AND ORDER ENTERED: Petitioner's motion for leave to proceed in forma pauperis 4 is granted. This matter is dismissed and all relief is denied. No certificate of appealability shall issue. Signed by U.S. Senior District Judge Sam A. Crow on 08/23/17. Mailed to pro se party Marcus Drake by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MARCUS DRAKE,
Petitioner,
v.

CASE NO. 17-3104-SAC

STATE OF KANSAS,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus1. Petitioner proceeds
pro se, and the Court grants leave to proceed in forma pauperis. For
the following reasons, the Court concludes petitioner is not entitled
to habeas corpus relief and will dismiss the petition.
Background
In February 2016, petitioner was convicted, on his guilty plea,
in Sedgwick County, Kansas, and sentenced to 18 months of probation.
He presently is incarcerated in Montana under a sentence imposed in
that state.
In this action, petitioner seeks relief from a detainer lodged
with Montana authorities based upon a probation violation. He states
that he filed a request with the Sedgwick County District Court in
December 2016, and that in January 2017, he filed a motion with the
Sedgwick County District Court which was denied. See Doc. #3, p. 15.2

1

The Court liberally construes this pro se petition as a filing under 28 U.S.C.
§ 2241.
2
The state court order attached to the petition shows that the probation violation
warrants were issued on April 27, 2016. The state district court rejected
petitioner’s request on the ground that the detainers are not based upon untried
charges.

Discussion
Petitioner seeks relief under the Interstate Agreement on
Detainers Act (IADA), K.S.A. 22-4401 et seq. He claims the detainers
are equivalent to an untried indictment.
The United States Supreme Court has held that the Due Process
Clause requires that a parolee taken into custody for alleged
violations of the conditions of parole must be afforded an informal
probable cause hearing “as promptly as convenient after arrest” and
a parole revocation hearing “within a reasonable time”. Morrissey v.
Brewer, 408 U.S. 471, 485-89 (1972). The Supreme Court later extended
this ruling to those on probation. Gagnon v. Scarpelli, 411 U.S. 778
(1973).
Despite this, when a person is serving an intervening sentence,
the right to a revocation hearing does not attach until the intervening
sentence is complete and the probationer is taken into custody under
the violator warrant. See Small v. Britton, 500 F.2d 299, 301 (10th
Cir. 1974).
Likewise, it is settled that the IADA, which allows a prisoner
incarcerated in one jurisdiction the right to demand the speedy
resolution of “any untried indictment, information or complaint” that
is the basis of a detainer, does not apply to detainers based upon
probation violation charges. Carchman v. Nash, 473 U.S. 716, 725-26
(1985)(holding that the IADA does not apply to probation violations).
In Carchman, the Supreme Court ruled that the term “untried
indictment” in the IADA refers to criminal charges upon which a
defendant would be “brought to trial” and not to those for which the
defendant has been convicted. Carchman, 473 U.S. at 725-26.
Petitioner’s detainer therefore is not an untried indictment subject

to the IADA, and he is not entitled to habeas corpus relief.
Certificate of Appealability
Under 28 U.S.C. § 2253, the Court may issue a certificate of
appealability “only if the applicant has made a substantial showing
of the denial of a constitutional right” and the Court identifies the
specific issue or issues that deserve additional review. A petitioner
meets that standard by showing that the issues presented are debatable
among jurists, that a court could resolve the issues differently, or
that the issues merit further consideration. Slack v. McDaniel, 529
U.S. 473 (2000)(citation omitted).
The Court finds no basis to issue a certificate of appealability
in this case. The denial of relief is based upon a Supreme Court holding
and is not reasonably debatable.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion for
leave to proceed in forma pauperis (Doc. #4) is granted.
IT IS FURTHER ORDERED this matter is dismissed and all relief
is denied.
IT IS FURTHER ORDERED no certificate of appealability shall
issue.
IT IS SO ORDERED.
DATED:

This 23rd day of August, 2017, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge