White v. Warden, Southeastern Correctional Institution
OPINION & ORDER: 1. DeMarco White's petition for a writ of habeas corpus #1 is DENIED. 2. This action is DISMISSED and STRICKEN from the Court's docket. Signed by Judge William O. Bertelsman on 10/8/2019.(ECO)cc: COR w/copy mailed to DeMarco White, pro se at address listed on the docket sheet.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON
WARDEN, SOUTHEAST CORR. INST.,
Civil No. 2:19-106-WOB
OPINION & ORDER
*** *** *** ***
DeMarco White is an inmate confined at the Southeastern Correctional Institution (“SCI”)
in Lancaster, Ohio. White has filed a pro se habeas corpus petition seeking an order from this
Court requiring Kentucky authorities to instruct the warden of SCI to expunge a detainer they
previously filed based upon pending Kentucky criminal charges against him. White contends that
the Kentucky indictment should be dismissed and the corresponding detainer expunged because
Kentucky authorities failed to comply with the Interstate Agreement on Detainers (“IAD”).1 [R.
1] This Court conducts an initial screening of White’s petition as required by 28 U.S.C. § 2243.
Alexander v. Northern Bureau of Prisons, 419 F. App’x 544, 545 (6th Cir. 2011). The Court will
deny the petition for the reasons explained below.
White initially filed this action in the United States District Court for the Southern District
of Ohio, the federal judicial district where he was confined. That Court originally ordered White
to pay the required filing fee or seek pauper status [R. 2], but transferred the case to this Court
without affording White an opportunity to comply. [R. 3]. The Southern District construed White’s
petition as arising under 28 U.S.C. § 2241 rather than 28 U.S.C. § 2254 as he had labeled it, and
transferred the case to this district because it “[has] jurisdiction over Campbell County, Kentucky,
wherein Petitioner alleges that the underlying criminal charges supporting the detainer were filed
...” Id. at 2. In light of the Court’s disposition of this matter, it need not delve further into the
propriety of that transfer and disregards White’s continued failure to pay the required five dollar
On September 3, 2015, White was charged in Campbell County, Kentucky with importing
heroin, second degree criminal abuse, and first degree bail jumping. Two weeks later he was
conditionally released from custody pending disposition of the charges by posting a $2,500.00
cash bond. Commonwealth v. White, No. 15-CR-00732 (Campbell Cir. Ct. 2015).2 While pretrial
proceedings continued in White’s Kentucky case, in January 2016 he was charged in Cincinnati,
Ohio with numerous counts of possession and trafficking in heroin and cocaine, as well as
possession of a concealed firearm and several other offenses. White was not arrested on those
charges until December 2016, and he later pleaded guilty to one count each of possessing heroin,
trafficking in heroin, and possessing a weapon while under a disability. In May 2017 the Ohio
court imposed a four-year sentence. Ohio v. White, No. /16/CRA/1988 (Hamilton Ct. Comm. Pleas
On January 3, 2019, White filed a motion in the Kentucky prosecution to dismiss the
indictment, contending that the Commonwealth had failed to comply with the IAD. [R. 1-1] One
week later the Commonwealth responded that “[c]learly, from the law, it is the duty of the
Defendant to instigate the IAD process by sending written notice to the Commonwealth with the
appropriate certificate. As of this date, no such notice or certificate have (sic) been received by the
division=CI&caseNumber=15-CR-00732&caseTypeCode=CR&client_id=0# (last visited on
October 2, 2019).
The Court may take judicial notice of undisputed information contained on government websites,
Demis v. Sniezek, 558 F. 3d 508, 513 n.2 (6th Cir. 2009), including proceedings in other courts of
record. Granader v. Public Bank, 417 F.2d 75, 82-83 (6th Cir. 1969). Such records and information
on government websites are self-authenticating. See Fed. R. Evid. 902(5); Qiu Yun Chen v. Holder,
715 F.3d 207, 212 (7th Cir. 2013) (“A document posted on a government website is presumptively
authentic if government sponsorship can be verified by visiting the website itself.”).
%2F16%2FCRA%2F1988&submit.x=16&submit.y=20 (last visited on October 2, 2019).
Commonwealth.” Contrary to White’s suggestion here, the prosecution did not assert that the IAD
was inapplicable on the ground that the detainer arose from a probation violation. The Campbell
Circuit Court denied White’s motion on January 31, 2019, and White took no appeal from that
The IAD is an interstate compact entered into by the participating states with the consent
of Congress, Cuyler v. Adams, 449 U.S. 433, 438-42 (1981), which “creates uniform procedures
for lodging and executing a detainer, i.e., a legal order that requires a State in which an individual
is currently imprisoned to hold that individual when he has finished serving his sentence so that
he may be tried by a different State for a different crime.” Alabama v. Bozeman, 533 U.S. 146, 148
(2001). To effectuate the IAD’s uniform procedures, each participating state enacts substantiallyidentical provisions for the processing of interstate detainers. Kentucky’s enactment of the IAD
provides, in pertinent part, that:
Whenever a person has entered upon a term of imprisonment in a penal or
correctional institution of a party state, and whenever during the continuance of the
term of imprisonment there is pending in any other party state any untried
indictment, information or complaint on the basis of which a detainer has been
lodged against the prisoner, he shall be brought to trial within one hundred eighty
(180) days after he shall have caused to be delivered to the prosecuting officer and
the appropriate court of the prosecuting officer’s jurisdiction written notice of the
place of his imprisonment and his request for a final disposition to be made of the
indictment, information or complaint: provided that for good cause shown in open
court, the prisoner or his counsel being present, the court having jurisdiction of the
matter may grant any necessary or reasonable continuance. The request of the
prisoner shall be accompanied by a certificate of the appropriate official having
custody of the prisoner, stating the term of commitment under which the prisoner
is being held, the time already served, the time remaining to be served on the
sentence, the amount of good time earned, the time of parole eligibility of the
prisoner, and any decisions of the state parole agency relating to the prisoner.
Ky. Rev. Stat. 440.450 Art. III(1) (2015).
The Court must deny relief for several reasons. First, in light of the Commonwealth’s
indication that it has never received a formal request under the IAD to require prompt resolution
of the Kentucky charges against him, White has not carried his burden to show that he properly
invoked the compact in the first instance. Second, even if White did properly invoke the IAD, the
Court must deny relief because the only remedy for a violation of the IAD is dismissal of the
underlying charges, relief this Court has no authority to effectuate. Cf. Mokone v. Fento, 710 F.2d
998, 1003 (3d Cir. 1983) (“only the courts of the indicting state can enter an order that would
effectively void the criminal charge” based on a violation of the IAD). Rights under the IAD may
only be asserted as a defense to the continued prosecution of charges in the underlying criminal
proceeding itself, not in ancillary proceedings in a separate court challenging the detainer resulting
from the charges. See Davenport v. Kentucky, No. 16-CV-210-GFVT (E.D. Ky. Dec. 27, 2016);
Phipps v. Kentucky States Parole Bd., No. 13-CV-60-GFVT, 2013 WL 5964678, at *2 (E.D. Ky.
Nov. 7, 2013) (“If Phipps wants the KPB detainer quashed, he must file an action in the Kentucky
state courts under the [IAD].”).
Federal habeas relief under 28 U.S.C. § 2241 is not available based upon an asserted
violation of the IAD unless “the error qualifies as a fundamental defect which inherently results in
a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of
fair procedure.” Reed v. Farley, 512 U.S. 339, 348 (1994). Here, while White filed a motion to
dismiss the indictment, he took no appeal from the Campbell Circuit Court’s denial of that motion.
In consideration of the comity owed to the state courts of Kentucky, and with due consideration of
the exhaustion requirements embodied in 28 U.S.C. § 2254, the Court cannot conclude that there
is yet any defect to correct at all, let alone one qualifying as so fundamental it warrants preemptive
federal habeas relief. Cf. Stallings v. Franco, 576 F. App’x 820, 822 (10th Cir. 2014) (noting that
“rights created by the [IAD] are statutory, not fundamental, constitutional, or jurisdictional in
nature,” and therefore a federal habeas corpus action is not an available means to assert an alleged
violation of the Act); Curtis v. United States, 123 F. App’x 179, 184–85 (6th Cir. 2005) (“alleged
violations of the Interstate Agreement on Detainers are not cognizable under either Section 2254,
relating to state proceedings, and Section 2255, relating to federal proceeding ... the same logic
applies to claims under § 2241 regarding alleged violations of the compact on detainers.”).
Because the “[a]uthority to render a detainer invalid and to dismiss the underlying charges
is afforded to the charging – not the sending – jurisdiction,” Howard v. Rees, No. 6: 06-CV-136DCR (E.D. Ky. Sept. 20, 2006), this Court lacks the authority to grant the relief White seeks, and
would not do so in any event under the facts presented here. Instead, White must seek relief from
the Kentucky indictment and the corresponding detainer lodged in Ohio by motion in the Campbell
Circuit Court and, if unsuccessful, pursuit of available state remedies, whether by appeal or by
petitioning for a writ of mandamus or prohibition.
Accordingly, the Court ORDERS as follows:
DeMarco White’s petition for a writ of habeas corpus [R. 1] is DENIED.
This action is DISMISSED and STRICKEN from the Court’s docket.
This 8th day of October, 2019.
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