Ray v. Denham ( 2015 )

  •                                                            FILED
                                                   United States Court of Appeals
                    UNITED STATES COURT OF APPEALS         Tenth Circuit
                           FOR THE TENTH CIRCUIT                     December 18, 2015
                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
           Petitioner - Appellant,
    v.                                                   No. 15-1252
                                                (D.C. No. 1:15-CV-01012-LTB)
    WARDEN DEBORAH DENHAM,                                (D. Colo.)
           Respondent - Appellee.
                            ORDER AND JUDGMENT *
    Before BACHARACH, O’BRIEN, and PHILLIPS, Circuit Judges.
          Mr. Austin Ray appeals from the district court’s dismissal of his
    habeas application. We affirm.
          In April 2014, Mr. Ray was indicted in the District of Colorado and
    taken into federal custody. He sought dismissal of the criminal case,
    arguing that
          The Court has determined that oral argument would not materially
    aid our consideration of the appeal. See Fed. R. App. P. 34(a)(2); 10th Cir.
    R. 34.1(G). Thus, we have decided the appeal based on the briefs.
          This order and judgment does not constitute binding precedent except
    under the doctrines of law of the case, res judicata, and collateral estoppel.
    But our order and judgment may be cited for its persuasive value under
    Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
               federal authorities deprived him due process and violated the
                Interstate Agreement on Detainers by removing him from a
                Colorado pre-parole conditional supervision program and
               the district court lacked personal jurisdiction over him.
    Mr. Ray also filed a habeas petition, making the same arguments. Because
    the same arguments were pending in the criminal case, the district court
    dismissed the habeas action. Mr. Ray appeals, and we affirm.
          In appropriate circumstances, federal courts can consider habeas
    applications filed by pre-trial detainees. See Walck v. Edmondson, 
    472 F.3d 1227
    , 1235 (10th Cir. 2007) (considering a double jeopardy challenge). But
    “[a]n attempt to dismiss an indictment or otherwise prevent a prosecution
    is normally not attainable by way of pretrial habeas corpus.” Capps v.
    13 F.3d 350
    , 354 (10th Cir. 1993) (alterations and internal
    quotation marks omitted). Even when habeas relief is otherwise available,
    the petitioner must first exhaust other available remedies. See, e.g., Dry v.
    CFR Court of Indian Offenses for the Choctaw Nation, 
    168 F.3d 1207
    1209 (10th Cir. 1999) (tribal remedies); Capps, 13 F.3d at 353-54 & n.2
    (state remedies); Williams v. O’Brien, 
    792 F.2d 986
    , 987 (10th Cir. 1986)
    (per curiam) (administrative remedies).
          In unpublished opinions, we have sometimes applied the exhaustion
    rule to deny habeas relief to federal detainees who filed habeas
    applications while their federal criminal cases were pending. See
    Thompson v. Robinson, 565 F. App’x 738, 739 (10th Cir. 2014)
    (unpublished); Hall v. Pratt, 97 F. App’x 246, 247-48 (10th Cir. 2004)
    (unpublished); Chandler v. Pratt, 96 F. App’x 661, 662 (10th Cir. 2004)
    (unpublished). We regard these opinions as persuasive because they follow
    logically from our precedents requiring exhaustion of other available
    remedies. Under these opinions, Mr. Ray had to exhaust his present claims
    by raising them in the criminal case. See Thompson, 565 F. App’x at 739;
    Hall, 97 F. App’x at 248; Chandler, 96 F. App’x at 662.
         The district court did not err in dismissing Mr. Ray’s habeas
    application. Thus, we affirm. Mr. Ray’s motion to proceed without
    prepayment of costs or fees is granted.
                                       Entered for the Court
                                       Robert E. Bacharach
                                       Circuit Judge