F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 14 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
TIMOTHY CHANDLER,
Petitioner-Appellant,
v. No. 03-1286
(D.C. No. 03-Z-922)
SAM PRATT, Warden, (D. Colo.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before BRISCOE and McKAY , Circuit Judges, and BRORBY , Senior Circuit
Judge.
After examining petitioner’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
While a pretrial detainee at the Federal Detention Center in Englewood,
Colorado, petitioner filed a pro se habeas petition under 28 U.S.C. § 2241
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
claiming his Fifth Amendment rights were being violated because 1) he had been
detained for over twenty-three months without a trial date having been set and
2) the superceding indictment was signed by David R. Haus as foreperson of the
grand jury, but an independent investigation revealed no record of anyone by that
name living in the state of Colorado. The district court dismissed the petition
without prejudice for failure to exhaust available remedies.
The court noted that if petitioner desired to challenge his pretrial detention,
he should do so by filing a motion in his criminal case under 18 U.S.C. § 3145,
and that if he wanted to challenge a violation of his speedy trial rights, he should
do so by filing a motion in his criminal case under 18 U.S.C. § 3162(a)(2). The
court further noted that petitioner’s counsel had, in fact, filed a motion in the
criminal case challenging petitioner’s pretrial detention and the alleged violation
of his speedy trial rights, and the motion was still pending. The district court
docket sheet for the criminal action also shows that petitioner’s counsel had filed
a motion seeking dismissal of the superceding indictment due to alleged grand
jury abuse. This motion also was still pending when the district court here
entered its order.
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Petitioner now appeals 1
and seeks leave to proceed on appeal in forma
pauperis . The district court denied petitioner’s request to proceed on appeal
in forma pauperis because it determined that this appeal was frivolous. We agree.
To be eligible for habeas corpus relief under § 2241, a federal pretrial
detainee usually must exhaust other available remedies. Cf. Fassler v. United
States , 858 F.2d 1016, 1018-19 (5th Cir. 1988) (per curiam) (holding defendants
cannot use § 2241 to challenge pretrial detention orders that can be challenged
under 18 U.S.C. § 3145); United States v. Pipito , 861 F.2d 1006, 1009 (7th Cir.
1987) (same). Here, all the claims petitioner attempted to raise in his § 2241
petition should have been, and apparently were being, pursued in the criminal
action. To allow petitioner to bring the same claims before another judge in
a collateral proceeding would not only waste judicial resources, but would
encourage judge shopping. The district court properly dismissed petitioner’s
claims without prejudice for failure to exhaust, and there was no arguable basis
in law or fact for appealing that decision. 2
1
Because petitioner is a federal prisoner seeking relief under 28 U.S.C.
§ 2241, he does not have to obtain a certificate of appealability before he can
pursue an appeal. Hunnicutt v. Hawk , 229 F.3d 997, 998 (10th Cir. 2000)
(per curiam).
2
In addition to the appeal being frivolous when filed, we note that petitioner
has since entered into a plea agreement pursuant to which he has waived
indictment and has pled guilty to a new one-count information. He is scheduled
to be sentenced on May 11, 2004. Thus, it appears that all the claims he raised in
(continued...)
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We therefore DENY petitioner’s request to proceed in forma pauperis
on appeal, and we DISMISS the appeal as frivolous.
Entered for the Court
Wade Brorby
Senior Circuit Judge
2
(...continued)
his § 2241 petition either are moot or have been waived.
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