Mikolon v. United States

Filing 34

MEMORANDUM OPINION AND ORDER Affirming And Adopting re 31 Report and Recommendation Of Mag Judge, Granting 24 Motion to Dismiss, Denying 2 Motion to Dismiss due to pre-indictment delay; 1 Petition for Writ of Habeas Corpus, filed by Kenneth M ikolon is DENIED and DISMISSED WITH PREJUDICE. Clerk is DIRECTED to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 8/18/11. (c to pet by certified mail)(mji) (Additional attachment(s) added on 8/18/2011: # 1 certified mail receipt) (mji).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KENNETH MIKOLON,
Petitioner,
v.

Civil Action No. 5:11CV20
(STAMP)

UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.

Background

On February 8, 2011, the pro se1 petitioner, Kenneth Mikolon,
an inmate at Huttonsville Correctional Center, filed a motion to
dismiss the indictment. Attached to this motion was an application
for habeas corpus pursuant to 28 U.S.C. § 2241.

That same day, the

petitioner also filed a motion for dismissal due to unnecessary
pre-indictment delay. The petitioner asserts that the delay by the
United States in filing the detainer has prejudiced him and
deprived him of his due process rights.

In response to an order to

show cause issued by United States Magistrate Judge John S. Kaull
on March 4, 2011, the government filed a motion to dismiss or, in
the alternative, motion for summary judgment.

On June 16, 2011,

the petitioner filed a response to the government’s motion to
dismiss or, in the alternative, motion for summary judgment.

1

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1341 (9th ed. 2009).

This matter was referred to Magistrate Judge John S. Kaull for
initial

review

and

recommendation

Prisoner Litigation Procedure 2.

pursuant

to

Local

Rule

of

On July 22, 2011, the magistrate

judge issued a report and recommendation recommending that the
petitioner’s § 2241 petition, his motion to dismiss the indictment,
and his motion for dismissal due to unnecessary pre-indictment
delay all be denied and that the United States’ motion to dismiss
be granted.

The magistrate judge advised the parties that,

pursuant to 28 U.S.C. § 636(b)(1)(C), any party may file written
objections to his proposed findings and recommendations within
fourteen (14) days after being served with a copy of the magistrate
judge’s recommendation.
On July 28, 2011, the petitioner filed a response/objections
to the report and recommendation in which he reiterates that the
government’s delay in filing a complaint or an arrest warrant in
his case was a clear violation of due process and/or the Speedy
Trial Act, 18 U.S.C. § 3161 et seq.

According to the petitioner,

this delay aided the government in pressuring him to sign a plea
agreement.

For the reasons set forth below, this Court finds that

the report and recommendation by the magistrate judge must be
affirmed and adopted in its entirety.
II.

Applicable Law

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
a

de

novo

review

of

any

portion

of

the

magistrate

recommendation to which objection is timely made.

2

judge’s

As to those

portions of a recommendation to which no objection is made, a
magistrate judge’s findings and recommendation will be upheld
unless they are “clearly erroneous.”
Supp. 825 (E.D. Cal. 1979).

See Webb v. Califano, 458 F.

Because the petitioner has filed

objections, this Court will undertake a de novo review as to those
portions of the report and recommendation to which objections were
made.
III.

Discussion

A § 2241 motion is used to attack the manner in which a
sentence is executed. See Preiser v. Rodriguez, 411 U.S. 475, 499500

(1973).

The

petitioner’s

application

for

habeas

corpus

pursuant to § 2241 states that this petition concerns the detainer
issued from the United States District Court for the District of
New Mexico.

The petitioner’s motion to dismiss the indictment

pursuant to 18 U.S.C. § 3161(b) and Federal Rule of Criminal
Procedure 48(b), although styled as a motion to dismiss the
indictment, actually requests that this Court dismiss the detainer
filed on January 20, 2011.

In his § 2241 application, the

petitioner asserts that he is under unlawful detainer for a crime
which no longer exists and that the detainer is no longer lawful
due to the dismissal of the charges the petitioner was on bail for.
As relief, the petitioner requests that he be released from federal
detainer.
In its motion to dismiss or, in the alternative, motion for
summary judgment, the United States argues: (1) the petitioner has

3

failed to state a claim upon which relief may be granted or, in the
alternative, the respondent is entitled to summary judgment; and
(2) the petitioner has failed to exhaust administrative remedies.
According to the United States, the petitioner makes factual
allegations in his petition that are disingenuous or erroneous on
their face.
In his report and recommendation, the magistrate judge first
addresses the petitioner’s argument that his detainer should be
dismissed pursuant to 18 U.S.C. § 3161(b).

This Court agrees that

because the petitioner is requesting that a detainer be dismissed,
he does not fall within the constraints of § 3161(b), which applies
to “any information or indictment.”

18 U.S.C. § 3161(b).

The

Eleventh, Sixth, and Fifth Circuits have held that a federal
detainer does not qualify as an arrest within the meaning of
§ 3161(b).

Therefore, the protections of § 3161(b) are not

triggered by the filing of a federal detainer.

United States v.

Shahryar, 719 F.2d 1522, 1524 (11th Cir. 1983); United States v.
Copley, 774 F.2d 728, 730-31 (6th Cir. 1985); United States v.
Johnson, 815 F.2d 309, 312 n.2 (5th Cir. 1987). This Court further
agrees with the magistrate judge’s conclusion that the petitioner’s
reliance on Federal Rule of Criminal Procedure 48(b) is similarly
misplaced.

Again,

because

the

petitioner

is

requesting

the

dismissal of a detainer, not an “indictment, information, or

4

complaint,” Rule 48(b) is inapplicable.

Fed. R. Crim. P. 48(b).2

Thus, this Court concludes that the petitioner has stated no
grounds in support of the relief he requests.
The magistrate judge goes on to explain that even if this
Court were to find that the petitioner’s § 2241 petition and motion
to dismiss the indictment were properly before this Court, the
petitioner’s motion must fail on the merits.

This Court agrees.

At the time of his arrest in New Mexico, the petitioner was free on
bail pending a trial of felony charges in Taylor County Circuit
Court Case Number 07-F-70.

While the petitioner is correct that

these

later

felony

charges

were

dismissed

as

a

result

of

a

mistrial, the arrest in New Mexico was unrelated to the felonies
charged in West Virginia in case number 07-F-70.

The criminal

complaint filed in the United States District Court for the
District of New Mexico charged the petitioner with being in
possession of firearms and/or ammunition while he was a fugitive
from justice.

The law of the United States Court of Appeals for

the Fourth Circuit confirms that the petitioner was, in fact, a
fugitive from justice at the time he was allegedly found to be in
possession of firearms and/or ammunition in New Mexico in November
2008.

See 18 U.S.C. § 921(a)(15); United States v. Spillane, 913

F.2d 1079, 1081 (4th Cir. 1990) (defining fugitive from justice).
Contrary to the petitioner’s assertion, the eventual dismissal of

2

Notably, the petitioner cites the language of Rule 48(b) in
his objections.
5

the underlying charges does not change the fact that the petitioner
was a fugitive from justice when he was arrested, nor does it make
the detainer unlawful.

The petitioner has not, and cannot, offer

any evidence to suggest that the charges described in the criminal
complaint filed in the United States District Court for the
District of New Mexico are unlawful or improper.
Next, the magistrate judge discusses whether the delay in
filing the detainer prejudiced the petitioner and deprived him of
his rights under the Due Process Clause of the Fifth Amendment.
Under Fourth Circuit law, the Due Process Clause requires dismissal
of the indictment “if it were shown at trial that the preindictment delay in this case caused substantial prejudice to the
appellees’ rights to a fair trial and that the delay was an
intentional device to gain tactical advantage over the accused.”
United States v. Shealey, 641 F.3d 627, 633 (4th Cir. 2011)
(quoting United States v. Marion, 404 U.S. 307, 324 (1971)).

This

Court agrees with the magistrate judge that this Court is not the
proper jurisdiction, and a § 2241 petition not the proper avenue,
for the petitioner’s claims.

Instead, the petitioner’s claims are

properly before the District of New Mexico. See Degina v. Carlson,
No. H 85-773, 1986 WL 15401, at *3 (D. Conn. Dec. 22, 1986)
(stating that the authority to dismiss a detainer is expressly
granted only to the charging jurisdiction).
Even if these issues were properly before this Court, this
Court

finds

that

the

petitioner

6

has

not

met

the

threshold

requirement of proving that actual substantial prejudice resulted
from pre-indictment delay. See Jones v. Angelone, 94 F.3d 900, 907
(4th Cir. 1996) (stating that the defendant must show that he was
“meaningfully impaired in his ability to defend against the state’s
charges to such an extent that the disposition of the criminal
proceeding was likely affected.”). The grounds that the petitioner
asserts in support of his claim of unnecessary delay are either
unrelated to the claim, speculative, or fall short of proving that
the petitioner suffered actual, substantial prejudice.
This Court now turns to the petitioner’s argument that preindictment delay cost him the chance to serve his federal and state
sentences concurrently.

As the magistrate judge correctly stated,

the Fourth Circuit has held that “there is no right to serve state
and federal sentences concurrently, and appellant’s lost chance of
doing so cannot be used to establish prejudice for the purposes of
challenging pre-indictment delay.”

United States v. Uribe-Rios,

558 F.3d 347, 358 (4th Cir. 2009).

Further, the petitioner has

presented no facts proving that the delay was an intentional device
to gain a tactical advantage over him at trial. In his objections,
the petitioner asserts that the government delayed in order to
pressure him into signing a plea agreement, but he offers no
evidence in support of this contention.

Although the government’s

delay may have caused petitioner stress and anxiety, as he claims
in his objections, this does not rise to the level of prejudicing
his right to a fair trial.

This Court agrees that the petitioner

7

has failed to meet his burden of proving that pre-indictment delay
actually

prejudiced

his

right

to

a

fair

trial.

Thus,

the

petitioner’s Fifth Amendment claim also fails.
Although

the

magistrate

judge

does

not

address

the

respondent’s argument that the petitioner has failed to exhaust his
administrative remedies, because this Court must review the report
and

recommendation

exhaustion.

de

novo,

it

will

address

the

issue

of

Under the Prison Litigation Reform Act (“PLRA”), a

prisoner bringing an action under any federal law must first
exhaust

all

§ 1997e(a).

available

administrative

remedies.

42

U.S.C.

Exhaustion under § 1997e(a) is mandatory, Booth v.

Churner, 532 U.S. 731, 741 (2001), and applies to “all inmate suits
about prison life.”

Porter v. Nussle, 534 U.S. 516, 532 (2002).

If failure to exhaust is apparent from the complaint, federal
courts have the authority pursuant to 28 U.S.C. § 1915 to dismiss
the case sua sponte.

Anderson v. XYZ Corr. Health Servs., Inc.,

407 F.3d 674, 682 (4th Cir. 2005).
Administrative

exhaustion

requires

an

inmate

to

pursue

informal resolution before proceeding with a formal grievance.
C.F.R. § 542.13.

28

The BOP’s formal administrative process is

structured as a three-tiered system.

28 C.F.R. § 542.10, et seq.

First, an inmate must submit a written complaint to the warden, to
which the warden supplies a written response.
and 542.14.

28 C.F.R. §§ 542.11

For inmates who do not obtain satisfactory relief at

the first tier, the second tier allows the inmate to file an appeal

8

with the Regional Director of the BOP.

28 C.F.R. § 542.15.

The

third, and final, tier of the formal administrative remedy process
is an appeal to the National Inmate Appeals Administrator for the
Office of General Counsel.

Id.

An inmate’s administrative

remedies thus are considered exhausted only after pursuing a final
appeal to the National Inmate Coordinator for the Office of General
Counsel.
Proper exhaustion of a PLRA claim requires an inmate to file
timely

and

procedurally

sound

administrative

grievances

in

compliance with the BOP’s administrative grievance process as
outlined above.

See Woodford v. Ngo, 548 U.S. 81, 90-91 (2006)

(“Proper exhaustion demands compliance with an agency’s deadlines
and other critical procedural rules because no adjudicative system
can function effectively without imposing some orderly structure on
the course of its proceedings.”).
In this case, it is evident from the petition itself that the
petitioner has failed to exhaust available administrative remedies.
On his application for habeas corpus pursuant to 28 U.S.C. § 2241,
the petitioner failed or refused to complete that portion of the
form that inquired as to his use of the prison’s internal grievance
procedure. Application for Habeas Corpus ¶ 14.

Additionally,

because the petitioner commenced this action a mere thirty (30)
days after his receipt of the detainer, he did not have sufficient
time

to

exhaust

available

administrative

remedies.

The

petitioner’s objections to do not address the United States’

9

argument that he failed to exhaust his administrative remedies, but
the failure to exhaust is apparent from the face of the petition.
Thus, the petition must be denied.

Even if the petitioner had

properly exhausted his administrative remedies, for the reasons
stated above, this Court finds that his petition must be denied.
IV.

Conclusion

Based upon a de novo review, this Court finds that the report
and recommendation of the magistrate judge should be, and is hereby
AFFIRMED and ADOPTED in its entirety. Accordingly, for the reasons
set forth above, the petitioner’s § 2241 petition is DENIED and
DISMISSED WITH PREJUDICE (Doc. 1).

Additionally, the petitioner’s

motion to dismiss the indictment (Doc. 1), as well as his motion
for dismissal due to pre-indictment delay (Doc. 2), are DENIED.
The United States’ motion to dismiss (Doc. 24) is GRANTED.

It is

ORDERED that this civil action be DISMISSED and STRICKEN from the
active docket of this Court.
Should the petitioner choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit
on issues to which objection was made, he is ADVISED that he must
file a notice of appeal with the Clerk of this Court within thirty
days after the date that the judgment order in this case is
entered.

See Fed. R. App. P. 4(a)(1).

He is further advised that

a certificate of appealability is not required for a federal
prisoner

proceeding

under

28

U.S.C.

§

2241.

See

28

U.S.C.

§ 2253(c) (certificate of appealability is required in a § 2255

10

proceeding or in a habeas corpus proceeding in which the detention
complained of arises from process issued by a State court); see
also Fed. R. App. P. 22; Drax v. Reno, 338 F.3d 98, 106 n.12 (2d
Cir. 2003).
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this order to the
pro se petitioner by certified mail and to counsel of record
herein.

Pursuant to Federal Rule of Civil Procedure 58, the Clerk

is DIRECTED to enter judgment on this matter.
DATED:

August 18, 2011

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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