United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
the Court is Michael Davitt's habeas corpus petition
under 28 U.S.C. § 2241 (Doc. 1). Petitioner, who appears
pro se, challenges his continued detention without
bond and asserts that his counsel refuses to follow
direction. Petitioner also seeks leave to proceed in
forma pauperis (Doc. 2). After reviewing the petition
sua sponte under Habeas Corpus Rule 4(b), the Court
concludes it must be dismissed.
January 10, 2017, Petitioner was charged with assaulting and
threatening a federal official in violation of 18 U.S.C.
§§ 111(a)(1) and 115(a)(1)(B). (CR Doc. 1 in
17-C1-00480).He was attested in Las Vegas, Nevada 10
days later. (CR Doc. 3). On February 13, 2017, the Nevada
District Court denied bond. (CR Doc. 5). Within the next week
this Court (Hon. Stephan Vidmar) appointed a public defender,
advised Petitioner of his rights, and inquired as to any
medical/mental health issues. (CR Docs. 8, 11). Petitioner
was urged to notify the Court if his medical needs were not
being met. (CR Doc. 11). The Court did not disturb the Nevada
District Court's detention order. (CR Docs. 8, 11).
Greek was appointed as Petitioner's counsel on or about
February 14, 2017. (CR. Doc. 12). She withdrew four days
later due to a conflict. (CR. Docs. 12, 13). Mr, Richard
Jewkes was then appointed. (CR. Doc, 14). Mr. Jewkes filed
motions to continue the April 6, 2017 trial and for a
psychiatric exam to determine whether Petitioner is competent
to stand trial. (CR. Doc's. 16, 21). The Court granted
both motions, scheduling the new trial for June 13, 2017.
(CR. Docs. 19, 22).
April 13, 2017, Mr, Jewkes sought to withdraw as counsel. (CR
Doc. 23). The motion recites that Petitioner refused to
participate in the psychiatric exam, refused to communicate
with counsel, and urged counsel to file a frivolous pretrial
motion. Id. By an order entered April 17, 2017, the
Court permitted Mr. Jewkes to withdraw. (CR Doc. 24).
Margaret Strickland was appointed as replacement counsel. (CR
filed the § 2241 action on May 8, 2017. He asserts: (1)
the Court failed to set a reasonable bond; (2) he was never
informed of the charges against him; (3) he was denied an
opportunity to enter his plea; and (4) he has not consented
to Judge Vidmar presiding over the trial. Petitioner also
complains his attorney refused to: (1) file a motion to
vacate the order granting a continuance to ensure a speedy
trial; (2) file a habeas corpus petition; (3) seek a
psychiatric evaluation; and (4) withdraw from representation.
record reflects the Court informed Petitioner of all pending
charges on February 17, 2017, at which time Petitioner pled
"not guilty." (CR, Doc. 10, 11). Petitioner's
assertions to the contrary are frivolous and do not form the
basis for relief under § 2241. See 28 U.S.C.
§ 1915(e)(2) (courts may sua sponte dismiss an
in forma pauperis complaint "at any time if...
the action ... is frivolous or malicious; for] fails to state
a claim on which relief may be granted"); Graham v.
Kaiser, 930 F.2d 33 (10th Cir. 1991) (unpublished)
(noting that the court may pierce the veil of the allegations
and dismiss an in forma pauperis complaint where the
petitioner's contentions are "belied by the
remaining claims are not ripe for review in a habeas
proceeding because Petitioner has not raised them in the
pending criminal matter. See Hall v. Pratt, 97
F.App'x 246, 247 (10th Cir. 2004) (unpublished) (noting
that the Court "may raise the issue of exhaustion sua
sponte"). As the Tenth Circuit Court of Appeals has
To be eligible for habeas corpus relief under § 2241, a
federal pretrial detainee generally must exhaust other
available remedies. See Fussier v. United States,
858 F, 2d 1016, 1018 (5th Cir. 1988); United States v.
Pipito, 861 F.2d 1006, 1009 (7th Cir. 1987); Moore
v. United States, 875 F.Supp. 620, 623 (D, Neb.l994).
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. See also Chandler v. Pratt,
96 F.App'x 661, 662 (10th Cir. 2004) (unpublished)
(affirming the dismissal of a pretrial detainee's habeas
petition because "all the claims petitioner attempted to
raise in his § 2241 petition should have been, and
apparently were being, pursued in the criminal action"),
Thus, any defense Petitioner "has to the criminal
charges against him and any challenges he has to his
prosecution can and must initially be raised in the criminal
matter, " and then in an appeal to the extent allowed by
law. Hicks v. United States, 2009 WL 1938976, * 2
(D. Kan. 2009) (unpublished).
has not requested new counsel, filed a motion to revoke the
detention order pursuant to 18 U.S.C. § 3145, or
indicated whether he consents to Judge Vidmar presiding over
the trial. The Court notes that any issues relating to
counsel may be moot, as it appears Petitioner drafted the
complaint before realizing Mr. Jewkes had withdrawn, In any
event, Petitioner must exhaust his available remedies in the
criminal action before he is entitled to relief in a habeas
action, For the foregoing reasons, Petitioner's §
2241 petition will be dismissed. Pursuant to Habeas Corpus
Rules 1(b) and 11, the Court determines Petitioner has failed
to make a substantial showing that he has been denied a
constitutional right. Consequently, the Court will deny a
certificate of appealability.
THEREFORE ORDERED that Petitioner's habeas corpus
petition under 28 U.S.C. § 2241 (Doc. 1) is DISMISSED
without prejudice; a certificate of appealability is DENIED;
and judgment will be entered.
FURTHER ORDERED that Petitioner's Motion for Leave to
Proceed In Forma Pauperis (Doc. 2) is DENIED as