Julien Garcon v. Palm Beach Co. Sheriff's Office

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Aug. 22, 2008
No. 07-15294 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 07-80888-CV-DTKH

JULIEN GARCON,

Plaintiff-Appellant,

versus

PALM BEACH COUNTY SHERIFF'S OFFICE,
FLORIDA DEPARTMENT OF CORRECTIONS,
RICK BRADSHAW,
U.S. MARSHALS (Detainer),

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(August 22, 2008)

Before WILSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
Julien Garcon, a federal prisoner proceeding pro se, appeals the district

court’s dismissal of his petition for habeas relief, 28 U.S.C. § 2241.1 After a

thorough review, we affirm.

While a pre-trial detainee, Garcon filed the instant habeas petition arguing

(1) his indictment was invalid; (2) the court lacked jurisdiction to hear his criminal

case; (3) counsel had been ineffective; (4) the grand jury was selected in a racially

discriminatory manner; (5) his arrest warrant was not supported by probable cause;

and (6) there were violations of the Speedy Trial Act. Upon the magistrate judge’s

recommendation, the district court dismissed the petition because Garcon had not

been brought to trial as of the date of filing and he was represented by counsel in

his up-coming criminal case. Garcon now appeals.

The availability of habeas relief under § 2241 is a question of law that we

review de novo. Sawyer v. Holder, 326 F.3d 1363, 1364 n.4 (11th Cir. 2003). We

note that since the filing of the instant petition, Garcon has been convicted of

possession of a firearm by a convicted felon and was scheduled for sentencing.

Upon review, we conclude that the district court properly dismissed the

1
The district court construed the habeas petition as brought under 28 U.S.C. § 2254
despite the fact that Garcon was a federal detainee at the time. Because Garcon was a federal
pre-trial detainee, the petition should have been construed as brought pursuant to 28 U.S.C.
§ 2241. 28 U.S.C. § 2241(c)(1); Hughes v. Att’y Gen. Of Fla., 377 F.3d 1258, 1261-1261 (11th
Cir. 2004).

2
petition. The claims Garcon sought to raise are properly brought during his

criminal case and subsequent direct appeal, should he choose to file one.

Therefore, the instant petition was premature and was due to be dismissed.

AFFIRMED.