Drew v. Tunica County Circuit Court, Tunica, Mississippi

Filing 3

OPINION AND ORDER by Judge John E Dowdell Directing petitioner to file a response to this Opinion and Order demonstrating why his petition for writ of habeas corpus should not be dismissed for failure to exhaust state court remedies by 6/14/2013, setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 6/14/2013) (SAS, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
WILLIAM E. DREW,

)
)
Petitioner,
)
)
vs.
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TUNICA COUNTY CIRCUIT COURT, )
TUNICA, MISSISSIPPI,
)
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Respondent.
)

Case No. 13-CV-227-JED-TLW

OPINION AND ORDER
On April 22, 2013, Petitioner, a state inmate appearing pro se, filed a petition for writ of
habeas corpus (Doc. 1). Petitioner is presently incarcerated at Dick Conner Correctional Center,
located in Hominy, Oklahoma. For the reasons discussed below, the Court finds Petitioner shall be
required to show cause why his petition for writ of habeas corpus should not be dismissed for failure
to exhaust state court remedies.
As a preliminary matter, because Petitioner challenges the execution of his sentence by
attacking the validity of a detainer for an untried indictment lodged against him by the State of
Mississippi, this matter is properly adjudicated under 28 U.S.C. § 2241, rather than § 2254. See
Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000) (finding that a petition filed by a state
prisoner challenging the execution of a sentence, rather than the validity of a conviction and
sentence, is properly brought under 28 U.S.C. § 2241, not § 2254).
BACKGROUND
Petitioner is presently in the custody of the Oklahoma Department of Corrections (ODOC)
pursuant to a Judgment and Sentence entered in Tulsa County District Court, Case No. CF-20044268. In that case, he was convicted of Shooting With Intent to Kill and sentenced to ten (10) years

imprisonment.

According to the website maintained by the ODOC, Petitioner’s term of

imprisonment will end August 15, 2014. See www.doc.state.ok.us.
In his petition, Petitioner attacks a detainer issued by Tunica County Circuit Court, Tunica,
Mississippi (Doc. 1). He claims he has been denied his right to a fast and speedy trial. The record
reflects that Petitioner received notice that a detainer had been lodged against him by the State of
Mississippi for untried charges filed in Tunica County, Mississippi, in November 2006 (id. at 10,
letter from Gov. Brad Henry). Petitioner had been charged with gaming violations by the Grand
Jury in a three count indictment filed in Tunica County Circuit Court, Case No. 2005-0137 (id. at
13-14). Petitioner states that he has tried for 4 ½ years to resolve the case pending in Mississippi
and has exhausted any available remedy (id. at 5). In support of his claim that he has exhausted
available state remedies, he asserts that on February 6, 2009, he filed a “Motion for Fast and Speedy
Trial,” in Tunica County Circuit Court, Case No. 2005-00137, but that, to date, he has never been
notified of any ruling on his motion, despite repeated inquiries (id. at 3). He also attaches letters
written to the governors of Mississippi and Oklahoma, the Lieutenant Governor of Oklahoma, the
Tunica County District Attorney, Mississippi Legal Services, the Extradition Coordinator for the
State of Oklahoma, the Oklahoma Attorney General, the General Counsel’s Office for the Oklahoma
Department of Corrections, the Appellate Court Clerk of the Mississippi Supreme Court, and the
Tunica County Circuit Court Judge (id. at 17-26, 28-30, 34).

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ANALYSIS
A threshold question for any habeas corpus action is whether the petitioner has exhausted
his state remedies before filing the habeas action. See Braden v. 30th Judicial Circuit Court of
Kentucky, 410 U.S. 484, 489 (1973) (a petitioner must exhaust all state remedies as a prelude to
seeking federal habeas corpus relief attacking an interstate detainer). The Supreme Court “has long
held that a state prisoner’s federal habeas petition should be dismissed if the prisoner has not
exhausted available state remedies as to any of his federal claims.” Coleman v. Thompson, 501 U.S.
722, 731 (1991); see also Rose v. Lundy, 455 U.S. 509, 522 (1982); 28 U.S.C. § 2254(b). The
exhaustion requirement is based on the doctrine of comity. Rose, 455 U.S. at 518. Requiring
exhaustion “serves to minimize friction between our federal and state systems of justice by allowing
the State an initial opportunity to pass upon and correct alleged violations of prisoners’ federal
rights.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam). Like § 2254’s requirement of
exhaustion of state remedies, a prisoner seeking relief under § 2241 must exhaust state remedies.
Montez, 208 F.3d at 865.
Exhaustion of judicial remedies for a federal claim may be accomplished by either showing
(a) the state’s appellate court had an opportunity to rule on the same claim presented in federal court,
or (b) there is an absence of an available State corrective process, or circumstances exist that render
such process ineffective to protect the rights of the applicant. Therefore, unless Petitioner has in fact
presented his constitutional claim(s) to Mississippi’s highest appellate court, or there is no available
procedural mechanism for Petitioner to present his constitutional claim(s) to the Mississippi’s
highest appellate court, then Petitioner is in federal court prematurely and his 28 U.S.C. § 2241
petition is subject to being dismissed without prejudice.

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Nothing provided by Petitioner suggests that he has commenced an action in the proper
Mississippi appellate court. Although Petitioner filed a motion to dismiss in Tunica County District
Court, he does not allege that he sought relief from the Mississippi Supreme Court. While the record
provided by Petitioner contains a letter written to the Appellate Court Clerk, (Doc. 1, at 30),
Petitioner has not filed for extraordinary relief, such as a petition for writ of mandamus, from the
highest Mississippi state court. Under these circumstances, this Court finds that Petitioner has failed
to demonstrate that he has exhausted all available state remedies. Hence, his habeas corpus petition
is subject to being dismissed for failure to exhaust.
Furthermore, as noted by Petitioner, Mississippi is one of two states that has not enacted the
Interstate Agreement on Detainers Act (IADA).1 One of the purposes of the IADA is to “provide for
the speedy disposition of charges filed in one jurisdiction against prisoners who are serving
sentences in another jurisdiction.” Birdwell v. Skeen, 983 F.2d 1332, 1335 (5th Cir. 1993).
However, in the absence of the IADA, “a jurisdiction [can] file a detainer on a prisoner and refuse
to prosecute its case until the prisoner’s release from incarceration in the first jurisdiction.” Id. That

1

The IADA is an agreement between the federal government, the District of Columbia, and
forty-eight states (excluding Mississippi and Louisiana). 18 U.S.C. App. 2, § 2; United States v.
Zwick, 2011 WL 666182 (W.D. Pa. Feb. 14, 2011); Munez v. United States, 2010 WL 2925917, at
*4 (D. N.J. July 21, 2010). “The [IADA] 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). “The [IADA] provides for
expeditious delivery of the prisoner to the receiving State for trial prior to the termination of his
sentence in the sending State. And it seeks to minimize the consequent interruption of the prisoner’s
ongoing prison term.” Id. The IADA requires that a receiving state bring a prisoner to trial within
one-hundred and twenty (120) days. 18 U.S.C. App. 2, § 2, art. IV(c). In addition, the “anti-shuttling
provision” of the IADA mandates, among other things, that an indictment against the prisoner be
dismissed if the prisoner is returned to the original place of imprisonment prior to being brought to
trial in the receiving state. 18 U.S.C. App. 2, § 2, art. IV(e); see also Munez, 2010 WL 2925917, at
*4.
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appears to be exactly what has happened here. Therefore, because the IADA does not apply,
Petitioner’s habeas corpus claim based on violation of his right to a speedy trial may be subject to
being dismissed even if Petitioner has exhausted state remedies.
In light of the considerations discussed above, Petitioner shall be required to file a response
to this Opinion and Order demonstrating why his petition for writ of habeas corpus should not be
dismissed for failure to exhaust state court remedies.

ACCORDINGLY, IT IS HEREBY ORDERED that within thirty (30) days of the entry
of this Order, or on or before June 14, 2013, Petitioner shall file a response to this Opinion and
Order demonstrating why his petition for writ of habeas corpus should not be dismissed for failure
to exhaust state court remedies.

Failure to comply with this Order may result in the dismissal of this action without
prejudice and without further notice.

DATED THIS 14th day of May, 2013.

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