Opinion
CIV-20-1206-PRW
09-30-2021
SHAWN J. GIESWEIN, Petitioner, v. STATE OF OKLAHOMA, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Petitioner Shawn J. Gieswein, a federal prisoner appearing pro se, purportedly brings this action under 28 U.S.C. § 2254 seeking a writ of habeas corpus. Before the Court are Mr. Gieswein's Amended Petition for Writ of Habeas Corpus (ECF No. 10) and Respondent's Motion to Dismiss Application for a Writ of Habeas Corpus and Brief in Support (ECF Nos. 15, 16). Mr. Gieswein has filed a Reply (ECF No. 19). United States District Judge Patrick R. Wyrick has referred this action to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B).
Because Mr. Gieswein is not challenging a state conviction, his Petition is construed as one filed pursuant to 28 U.S.C. § 2241.
By this action, Mr. Gieswein is seeking dismissal of the charge filed against him in the Oklahoma County District Court. According to Mr. Gieswein, his protections under the Interstate Agreement on Detainers Act (IADA) were violated when he was not brought to trial within 180 days of his request for final disposition of the state charge against him. As discussed in further detail below, Mr. Gieswein's attempts to invoke the protections of the IADA were insufficient to trigger the running of the applicable limitations period during which the State would have been obligated to bring him to trial. Thus, the Amended Petition for Writ of Habeas Corpus (ECF No. 10) should be DENIED.
Both the State of Oklahoma and the United States are signatories to the IADA. See Okla. Stat. Ann. tit. 22, § 1345 (West); 18 U.S.C.A. § APP. 2 § 2 (West).
I. BACKGROUND
Mr. Gieswein is currently in the custody of the Bureau of Prisons serving a term of imprisonment after his conviction in this Court on charges of Felon in Possession and Witness Tampering. See United States of America v. Gieswein, Case No. 07-CR-120-F-1. On July 2, 2008, the District Attorney for Oklahoma County, Oklahoma, filed a felony assault and battery charge against Mr. Gieswein in the District Court of Oklahoma County, Oklahoma, Case No. CR-2008-3772. (ECF No. 16-1:1-5).
Mr. Gieswein was apparently not aware of the state charge against him until the warden of the federal facility in which he was incarcerated notified him that a “hold” had been placed on him based on the state assault and battery charge. (ECF No. 19:2).
Mr. Gieswein has not produced any documents to demonstrate the steps he took in his attempt to invoke the protections of the IADA. But documents attached to Respondent's Brief show that upon learning about the hold, Mr. Gieswein filed a series of motions in the Oklahoma County District Court seeking dismissal of the state charge against him. These motions were based on a variety of theories, most of which went to the merits of the criminal charge against him. First, on December 5, 2016, Mr. Gieswein filed a Motion to Dismiss based on his theory that he had already served time in the Oklahoma County Detention Center in excess of the maximum sentence allowed for the crime with which he was charged. (ECF No. 16-2).
Then, on January 5, 2017, Mr. Gieswein filed a Motion to Dismiss based on his claim that he was acting in self-defense during the altercation from which the state charge arose. (ECF No. 16-3). The state court took no action on these motions.
On January 11, 2017, Mr. Gieswein filed a document entitled “Notice of Detainer” requesting a “speedy trial in this case under the Interstate Agreement on Detainers.” (ECF No. 16-4). The next month, the warden of the federal facility in which Mr. Gieswein was incarcerated sent a “Detainer Action Letter” dated February 14, 2017, addressed to the Oklahoma County Sheriff's Department asking for information regarding the disposition, if any, for Case No. CF-2008-3772. (ECF No. 16-6).
Apparently in response to Mr. Gieswein's Notice of Detainer, the Detainer Action Letter or both, the state district court filed an “Order Requiring District Attorney to Act” dated July 25, 2017. The Order stated:
The Defendant has filed a motion in the above-styled cause. The Defendant seeks a final resolution of this matter. The Defendant is currently in custody.
Therefore, the District Court orders the Oklahoma County District Attorney to proceed on this instant case and have the Defendant brought before the District Court at 9:00a.m. on the 27th day of November 2017.(ECF No. 16-5). The Oklahoma County District Attorney did not comply with the court's order.
On August 7, 2017, Mr. Gieswein filed yet another Motion to Dismiss in the state district court, this time claiming his right to a speedy trial under the IADA and the Sixth Amendment had been violated. Plaintiff's underlying theory was that the January 11, 2017, document entitled “Notice of Detainer” filed in the state district court had triggered the running of the 180-day time period during which, he believes, the Oklahoma County District Attorney was obligated to bring him to trial under the provisions of the IADA. (ECF 16-6). Because the District Attorney had not acted, Mr. Gieswein sought dismissal of the charge against him.
Mr. Gieswein's next filing dated December 7, 2017, was entitled, “Notice for Speedy Trial Violations.” In this document, Mr. Gieswein added a new theory-that the Oklahoma County District Attorney had not brought the charge against him within 30 days of the date of the alleged assault, as required by Oklahoma law. (ECF No. 16-7).
On April 2, 2018, Mr. Gieswein filed two motions. First, he filed yet another Motion to Dismiss, this time detailing the date of the alleged assault and the date the District Attorney filed the charge against him, again contending the charge in Case No. 2008-3772 should be dismissed. Mr. Gieswein pointed out the District Attorney waited 59 days before filing the Information charging Mr. Gieswein with assault on a police officer, in violation of Oklahoma law which requires charges to be filed within 30 days of the incident leading to arrest. (ECF No. 16-8). Additionally, he filed a Motion for Protective Order contending his life would be in danger should he be sent to Oklahoma and placed in the Oklahoma County Detention Center to await trial on the assault charge. (ECF No. 16-9).
After his unsuccessful attempts to convince the state district court to dismiss the assault charge against him, Mr. Gieswein turned to the Oklahoma Court of Criminal Appeals (OCCA), filing a Petition for Writ of Mandamus on September 10, 2018. The OCCA declined jurisdiction based on Mr. Gieswein's failure to properly give notice of the action to the correct party. (ECF No. 16-10:3).
The Court takes notice of the OCCA's docket sheet in Case No. MA-2018-938 (Sept. 26, 2018). See https://www.oscn.net.
Mr. Gieswein returned to the Oklahoma County District Court on December 17, 2018, filing another Motion to Dismiss. This time, Mr. Gieswein's motion was based on his contention that he could not have assaulted a police officer on May 29, 2008, because he had already been transferred to federal custody. According to Mr. Gieswein, he was held at the “federal holdover facility” from May 23, 2008, through June 4, 2008, before being transferred to a facility in Florence, Colorado. (ECF No. 16-11).
On June 4, 2019, Mr. Gieswein filed a “Memorandum” in the state district court summarizing his argument for dismissal based on alleged violation of the IADA. (ECF No. 16-12). Perhaps convinced by Mr. Gieswein's Memorandum, the Oklahoma County District Attorney sent a letter dated June 11, 2019, addressed to the Records Custodian of the Federal Correctional Institution in Texarkana, Texas, where Mr. Gieswein was then incarcerated, asking that the “hold or detainer” against Mr. Gieswein based on Case No. 2008-3772 be released. A copy of the letter was filed in the state case. (ECF No. 16-13). The district attorney did not, however, dismiss the charge against Mr. Gieswein.
Mr. Gieswein promptly filed a “Notice to the Court” on June 21, 2019, citing the IADA and case law, contending the proper remedy for violation of the IADA is dismissal of the charge-not simply the withdrawal of the detainer. (ECF No. 16-14). But the state district court took no action, and Mr. Gieswein filed another Notice to the Court on July 22, 2019, (ECF No. 16-15), followed by a Motion to Dismiss with Prejudice. (ECF No. 16-16).
Mr. Gieswein filed his first Petition for Writ of Habeas Corpus in this Court on September 23, 2019. This Court dismissed the case on initial review after determining Mr. Gieswein had not exhausted his state court remedy by properly filing an application for writ of mandamus in the OCCA. (ECF No. 16-22).
The Court takes notice of the docket sheet in Case No. CIV-19-883 (WDOK Apr. 7, 2020).
Upon dismissal of his federal habeas action, Mr. Gieswein returned to the OCCA again seeking a writ of mandamus based on his contention that his right to a speedy trial under the IADA had been violated. (ECF No. 16-18). The OCCA denied the petition. (ECF No. 16-20).
Thereafter, Mr. Gieswein filed the instant habeas petition seeking to have the charge in Case No. CF-2008-3772 dismissed for alleged violation of the IADA.
II. ANALYSIS
Mr. Gieswein contends that the numerous motions he filed in the state district court triggered the protections of the IADA. He seeks dismissal of the felony assault and battery upon a police officer charge filed against him in state court based on his theory that his right to a speedy trial was violated. Respondent contends that Mr. Gieswein has not exhausted his state court remedies because his two petitions for mandamus were defective. Having reviewed the course of the litigation in the state courts, the undersigned finds it would be futile to require Mr. Gieswein to attempt to secure another writ of mandamus in the OCCA. Moreover, this Court is vested with the discretion to dismiss a § 2241 petition on the merits despite the petitioner's failure to exhaust state court remedies. See Garza v. Davis, 596 F.3d 1198, 1205 (10th Cir. 2010) (based on rules governing judicial management of litigation in the analogous context of § 2254 petitions, federal district court possessed discretion to deny § 2241 petition if petitioner was not entitled to relief, even if petitioner had not exhausted remedies).
The IADA provides two procedures for procuring the trial of a prisoner against whom a detainer has been lodged between jurisdictions that are members of the IADA compact. One procedure is for use by prosecuting authorities to obtain custody of a prisoner for trial. See Okla. Stat. tit. 22, § 1347, art. IV. The other is for the use of the prisoner who is serving a term of imprisonment in one jurisdiction and who desires a speedy trial on an untried indictment, information, or complaint that is pending against him in another member jurisdiction. Okla. Stat. tit. 22, § 1347, art. III. The Article III procedure is at issue here. Under Article III, an inmate, such as Mr. Gieswein, has the burden to “deliver[ ] to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint.” 18 U.S.C.A. § App. 2 § 2 Art. III(a); Okla. Stat. Tit. 22, § 1347, Art. III(a). Once this burden is met, i.e., the “delivery” of the inmate's request to the appropriate prosecuting authorities, the trial court is required to bring the inmate to trial within 180 days. 18 U.S.C.A. § App. 2 § 2 Art. III(a); Okla. Stat. Tit. 22, § 1347, Art. III(a).
With the exception for continuances sought by the prisoner, if trial is not commenced within that 180-day period, “such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.” Okla. Stat. tit. 22, § 1347, art. III(d).
But before the 180-day clock will begin to run, the IADA requires the prisoner to strictly follow the statutory procedures. The IADA specifies what the demand notice must contain, on whom it must be served, and how it must be delivered.
In Fex v. Michigan, 507 U.S. 43 (1993), the Supreme Court emphasized the steps a prisoner must necessarily take under Article III of the IADA to effectively trigger the receiving state's duty to bring the prisoner to trial within the 180-day limitation period.
Writing for a seven-member majority, Justice Scalia stated, "We hold that the 180-day time period in Article II (a) of the (IADA) does not commence until the prisoner's request for final disposition of the charges against him has actually been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against him.” Fex, 507 U.S. at 52 (emphasis added). In reaching that conclusion, the Supreme Court relied on language in the federal IADA statute identical to that appearing in Article III(a) of Oklahoma's IADA:
he [the prisoner] shall be brought to trial within one hundred eighty (180) days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for final disposition to be made of the indictment, information, or complaint.22 O.S.2011, § 1347, art. III(a).
The BOP has developed specific forms for use by a prisoner who wishes final disposition of state charges against him while he is in BOP custody. Form BP-A0238 is the IAD Certification of Inmate Status. The bottom of the form specifies the parties to whom the certification must be delivered. The parties include the clerk of the state court and the prosecuting official. Form BP-A0236 is entitled IAD Place of Imprisonment. This form must also be sent to the clerk of the state court and to the prosecuting authority.
Mr. Gieswein has not produced proof of his having “caused to be delivered” the notice to the prosecuting authority and the district court necessary to trigger the protections of the IADA, specifically the running of the 180-day time period. Thus, his petition for habeas relief should be denied.
IV. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
For the reasons discussed in this Report and Recommendation, the Court recommends that Mr. Gieswein's Amended Petition for Writ of Habeas Corpus (ECF No. 10) be DENIED. Adoption of this report and recommendation will MOOT the Respondent's Motion to Dismiss (ECF No. 15). The parties are hereby advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by October 18, 2021. See 28 U.S.C. § 636(b)(1); and Fed.R.Civ.P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
V. STATUS OF THE REFERRAL
This Report and Recommendation terminates the referral.
ENTERED.