United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
MATTER is before the Court sua sponte under Rule 4
of the Rules Governing Section 2254 Cases in the United
States District Courts, for preliminary consideration of
Petitioner Edward Brian Crist's Petition Under 28 U.S.C.
§ 2254 For Writ of Habeas Corpus By A Person in State
Custody, filed on November 21, 2016. [Doc. 1] Also before the
Court is Petitioner's Application to Proceed in District
Court Without Prepaying Fees or Costs pursuant to 28 U.S.C.
§ 1915, filed on December 7, 2016. [Doc. 6] Because it
appears that Petitioner is unable to prepay the $5 filing
fee,  Petitioner's Application will be
granted. For the reasons explained below, the Court
determines that it lacks jurisdiction over Petitioner's
§ 2254 motion. Therefore, Petitioner's § 2254
motion will be dismissed for lack of jurisdiction, all
pending motions will be denied as moot, a certificate of
appealability will be denied, and judgment will be entered.
November 1, 2016, Petitioner filed the present § 2254
motion challenging his "pending" criminal charges
in State of New Mexico District Court and Bernalillo County
Metropolitan Court. [Doc. 1] See State of New Mexico v.
Crist, D-202-201601969 and State of New Mexico v.
Crist, T-4-FR-2016003101. Petitioner contends that he
was falsely arrested, that his trial counsel is ineffective,
and that Detective Joe Lopez falsified documents and
testified falsely before the Grand Jury. Petitioner seeks the
dismissal of all pending charges in State of New Mexico
v. Crist, D-202-201601969 and immediate relief. [Doc. 1
28 of the United States Code, section 2254 provides, in
relevant part, that the "district court shall entertain
an application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State
Court." 28 U.S.C. § 2254(a). "The first
showing a § 2254 petitioner must make is that he is
'in custody pursuant to the judgment of a State
Court.'" Lackawanna Cty. Dist. Attorney v.
Coss, 532 U.S. 394, 401 (2001) (quoting 28 U.S.C. §
2254(a)). The term "judgment of a State Court
Court" within § 2254 "refers only to
conviction and sentence." Walck v. Edmondson,
472 F.3d 1227, 1234 (10th Cir. 2007). "Section
2254's in-custody requirement is jurisdictional."
McCormick v. Kline, 572 F.3d 841, 848 (10th Cir.
was not in custody pursuant to a state court judgment at the
time his § 2254 motion was filed because his state
charges in D-202-201601969 were still pending. Petitioner
"is best described as a pretrial detainee" and
"a state court defendant attacking his pretrial
detention should bring a habeas petition pursuant to the
general grant of habeas authority contained in 28 U.S.C.
§ 2241." Walck, 472 F.3d at 1235. Thus, a
habeas petition pursuant to "§ 2241 is the proper
avenue by which to challenge pretrial detention."
Court has the authority to recharacterize Petitioner's
§ 2254 motion as a § 2241 motion. See Castro v.
United Stales, 540 U.S. 375, 377 (2003) ("Federal
courts sometimes will ignore the legal label that a pro se
litigant attaches to a motion and recharacterize the motion
in order to place it within a different legal
category."). However, this Court declines to
recharacterize Petitioner's § 2254 motion because
Petitioner is no longer in state pretrial detention in
D-202-201601969 or T-4-FR-2016003101. The docket in
T-4-FR-2016003101 reflects that the criminal charges in that
case were dismissed on June 27, 2016 because the case was
"transferred to the district court on Grand Jury
Indictment." See State of New Mexico v. Crist,
T-4-FR-2016003101, available at
https://caselookup.nmcourts.gov/caselookup/app; see also
St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins.
Corp., 605 F.2d 1169, 1172 (10th Cir. 1979) (recognizing
that "federal courts, in appropriate circumstances, may
take notice of proceedings in other courts, both within and
without the federal judicial system, if those proceedings
have a direct relation to matters at issue"). The docket
in D-202-201601969 reflects that the criminal charges in that
case were dismissed on March 6, 2017 by the filing of a
nolle prosequi because "the case is being
referred for federal prosecution." [Doc. 17] See
State of New Mexico v. Crist, D-202-201601969,
https://caselookup.miicourts.gov/caselookup/app; see also
Wilkins v. DeReyes, 528 F.3d 790, 802 n.8 (10th Cir.
2008) (noting that "[a] nolle prosequi
represents a legal notice that a . . . prosecution has been
abandoned") (internal quotation marks and citation
omitted). Because there no longer are any state criminal
charges pending against Petitioner and the relief sought in
his motion (i.e. the dismissal of all "charges in
criminal complaint CR-16-1969") already has been granted
to him, the Court concludes that the claims raised in his
§ 2254 motion are moot. See Howell v. Volenti,
842 F.2d 1291 (4th Cir. 1988) (holding that the
petitioner's § 2254 motion was rendered moot by the
filing of "a nolle prosequi of all charges
against [the petitioner] related to the subject matter of the
petition") (per curiam) (unpublished).
there are no pending state criminal charges against
Petitioner, the Court notes that there are
pendingfederal criminal charges against Petitioner
in the United States District Court for the District of New
Mexico in United States v. Crist, No. 16-CR-4356-JCH
(D.N.M. November 15, 2016). Indeed, some of Petitioner's
recent filings ask the Court to take judicial notice of the
documents filed in No. 16-CR-4356-JCH and appear to raise
constitutional claims challenging his federal pretrial
detention. [See Docs. 15, 16] As previously
explained, a § 2241 motion is the proper procedural
vehicle to challenge pretrial detention. See Walck,
472 F.3d at 1235. The Court declines to recharacterize
Petitioner's § 2254 motion as a § 2241 motion
challenging his federal pretrial detention in No.
16-CR-4356-JCH because he was not "in custody" on
federal charges at the time his motion was filed. See
United States v. Crist, 16-CR- 04356-JCH, Docs. 5, 6
(D.N.M. January 13, 2017) (issuing a writ of habeas corpus
ad prosequendum for custody of Petitioner
until completion of federal case); see also Maleng
v. Cook, 490 U.S. 488, 491 (1989) (noting that
§ 2241(c)(3) requires "that the habeas petitioner
be 'in custody' under the conviction or sentence
under attack at the time his petition is filed").
Additionally, "[t]o be eligible for habeas corpus relief
under § 2241, a federal pretrial detainee generally must
exhaust other available remedies." Hall v.
Pratt, 97 F.App'x 246, 247 (10th Cir. 2004)
The reasons for this requirement are rooted not in comity (as
is the case with state prisoners), but in concerns for
judicial economy. Allowing federal prisoners to bring claims
in habeas proceedings that they have not yet, but still
could, bring in the trial court, would result in needless
duplication of judicial work and would encourage "judge
Id. at 247-48. Thus, Petitioner must pursue and
exhaust the available remedies in his federal criminal
proceeding, 16-CR-4356-JCH, before filing a petition for writ
of habeas coipus challenging his federal pretrial detention
pursuant to 28 U.S.C. § 2241.
foregoing reasons, the Court concludes that it lacks
jurisdiction over Petitioner's § 2254 motion and,
therefore, the motion will be dismissed without prejudice and
all pending motions will be denied as moot. The Court further
concludes, pursuant to 28 U.S.C. § 2253(c)(2) and Rule
11 of the Rules Governing Section 2254 Cases In The United
States District Courts, that Petitioner has failed to make a
substantial showing that he has been denied a constitutional
right and, therefore, a certificate of appealability will be
denied and judgment will be entered.
THEREFORE ORDERED that Petitioner's Application to
Proceed in District Court Without Prepaying Fees or Costs
pursuant to 28 U.S.C. § 1915 [Doc. 6] is GRANTED;
FURTHER ORDERED that Petitioner's § 2254 motion
[Doc. 1] is DISMISSED for lack of jurisdiction and all
pending motions are DENIED as moot;
FURTHER ORDERED that a certificate of appealability is DENIED
and judgment will be entered.