United States v. Hailey

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 9 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 01-5036
(D.C. No. 92-CR-121-B)
MICHAEL HAILEY, (N.D. Okla.)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before TACHA , Chief Judge, PORFILIO , and ANDERSON , Circuit Judges.

After examining the briefs and 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.

*
This order and judgment is not binding precedent, except under the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.
 Defendant Michael Hailey, proceeding pro se, appeals from an order of the

district court denying his motion for a speedy trial or dismissal of the federal

charges pending against him. We dismiss the appeal for lack of jurisdiction.

Hailey is currently serving a state court sentence. In 1993, he was

sentenced in federal court to twenty-four months’ imprisonment with three years’

supervised release. Hailey served the twenty-four month portion of his federal

sentence and was then transferred to state custody for service of his state

sentence. Later, he was placed on a pre-parole release status on his state charges.

As he, apparently, was no longer physically confined by the Oklahoma

Department of Corrections while on this status, he commenced the three-year

supervised release portion of his federal sentence at the same time.

Approximately two years later, Hailey committed another state crime. His

pre-parole status was revoked and he was returned to state custody. The United

States Probation Office filed a petition to revoke his supervised release. A

warrant was issued based on the petition and a detainer was lodged with state

officials. The detainer has been in place since 1998.

The district court denied Hailey’s motion holding that the Speedy Trial Act

does not apply as Hailey is not awaiting trial on the federal charges, but has

already been convicted and sentenced. The court also held that he is not entitled

to relief under Fed. R. Crim. P. 32.1(a)(2) as that rule does not apply until the

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parolee is taken into custody on the parole violation. The court held that issuance

of a detainer does not trigger the protections of the rule.

The district court’s order is not a final order but, rather, is interlocutory.

Thus, we lack jurisdiction to review it. We may exercise jurisdiction only over

final orders, 28 U.S.C. § 1291, and certain interlocutory and collateral orders, id.

§ 1292; Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp. , 337 U.S.

541, 546 (1949). The order Mr. Hailey wishes to appeal is neither a final order

nor an appealable interlocutory or collateral order. Cf. United States v.

Hunnewell , 855 F.2d 1, 1 (1st Cir. 1988) (holding district court’s interlocutory

denial of motion to dismiss for violation of the Interstate Agreement on Detainers

Act is not final appealable order); United States v. Cejas , 817 F.2d 595, 596 (9th

Cir. 1987) (holding court did not have jurisdiction to review denial of motion to

dismiss indictment for violation of the Interstate Agreement on Detainers Act).

Appeal DISMISSED for lack of jurisdiction. Hailey’s motion to proceed in

forma pauperis on appeal is DENIED. Hailey’s prison account reveals sufficient

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funds to pay the filing fee immediately rather than on the delayed payment

schedule provided for in 28 U.S.C. § 1915(b)(1).

Entered for the Court

John C. Porfilio
Circuit Judge

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