Opinion
Civil No. 03-2208 (JRT/JGL).
July 1, 2003.
Troy Timothy Kisling, Pro Se for Petitioner
David J. MacLaughlin, Assistant United States Attorney, Office of the United States Attorney, Minneapolis, MN, Attorney for Respondent.
ORDER ADOPTING REPORT RECOMMENDATION OF MAGISTRATE JUDGE
Petitioner Troy Timothy Kisling brings this petition for habeas corpus, pursuant to 28 U.S.C. § 2241, requesting that he be released from the Sherburne County Jail, where he is being held pending trial. On April 1, 2003, United States Magistrate Judge Jonathan G. Lebedoff recommended that petitioner's application for habeas corpus relief be denied and this action be dismissed without prejudice. Petitioner timely filed objections to the report and recommendation. The Court has conducted a de novo review of petitioner's objections pursuant to 28 U.S.C. § 636(b)(1)(C) and D. Minn. L.R. 72.1(c)(2). For the reasons set forth below, the Court overrules petitioner's objections, adopts the report and recommendation of the Magistrate Judge, and denies petitioner's § 2241 petition.
BACKGROUND
Petitioner is a defendant in a pending criminal case in this district, United States v. Wilcox et al., Crim. No. 02-408(3) (DWF/SRN), and is represented in that case by Assistant Federal Public Defender Virginia Villa. The underlying criminal case involves issues of mail fraud, and petitioner was arrested on December 19, 2002. He appeared before Magistrate Judge J. Earl Cudd on December 24, 2002 when he entered a plea of not guilty, and the government requested that bail be denied. In an Order dated December 26, 2003, Magistrate Judge Cudd granted the government's request that bail be denied. On February 11, 2003, petitioner filed a motion to reconsider the detention decision. That motion was denied, and on April 18, 2003 petitioner, through his attorney, filed a notice of interlocutory appeal to the Eighth Circuit, requesting review of the detention order. That appeal is pending.
The instant petition was filed prior to the decision on the motion for reconsideration and prior to the appeal to the Eighth Circuit. Petitioner requests a decision that would overturn Magistrate Cudd's detention order.
Magistrate Judge Lebedoff recommended denying petitioner's application for habeas relief because petitioner had not exhausted the remedies available to him in the underlying criminal case. Petitioner objects to the application of the rules governing § 2254 petitions to his § 2241 petition, and to any insinuation that he is "judge shopping." Petitioner also asserts that the issues raised in the instant petition were not raised in his appeal to the Eighth Circuit.
ANALYSIS
Petitioner correctly distinguishes between petitions brought pursuant to § 2254, and those, such as the instant petition, brought pursuant to § 2241. However, the rules and case law applicable to § 2254 can be useful in analyzing petitions for relief brought pursuant to § 2241. See Mickelson v. United States, Civil No. 01-1750 (Minn. 2002), 2002 WL 31045849 at *2; Boston v. Carlson, 884 F.2d 1267, 1270 n. 1 (9th Cir. 1989).
Federal pre-trial detainees can obtain review of pre-trial decisions only if all other remedies are exhausted. See Moore v. United States, 875 F. Supp. 620, 622-23 (Neb. 1994) (citing United States v. Pipito, 861 F.2d 1006, [1009] (7th Cir. 1987) and Frassler v. United States, 858 F.2d 1016, 1018 (5th Cir. 1988)). In this case, relief is inappropriate because petitioner has not exhausted his direct review rights. Although petitioner's request for reconsideration was denied, petitioner's appeal of the detention order is currently pending before the Eighth Circuit. The Court does not doubt petitioner's assertion that he did not intend to "judge shop." Nonetheless, important considerations of efficiency in judicial administration require that the exhaustion requirements apply in cases such as this. Petitioner is already seeking review of the detention order in the Eighth Circuit; if this Court were to entertain the instant petition on the merits, two courts would address an identical issue. Not only would such a result be inefficient, but it also raises a possibility that nearly simultaneous and potentially conflicting decisions could issue from this Court and the Eighth Circuit. Petitioner contends that this habeas petition is appropriate because the issues raised here are distinct from those raised in his direct appeal. However, the notice of appeal indicates that the pretrial detention decision is before the Eighth Circuit now. That is the same issue that petitioner asks the Court to review in this petition. Further, the failure to raise the issue on direct review would likely be fatal to a habeas challenge to the same issue. See United States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001) ("Because habeas relief is an extraordinary remedy which will not be allowed to do service for an appeal, significant barriers exist in the path of a petitioner who seeks to raise an argument collaterally which he failed to raise on direct review." (internal quotation omitted).); Willis v. Ciccone, 506 F.2d 1011, 1014-15 (8th Cir. 1974) (stating that habeas corpus "should not be resorted to until other more conventional remedies have failed").
ORDER
Based on the foregoing, the submissions of the parties, and all of the files, records, and proceedings herein, the Court OVERRULES petitioner's objections [Docket No. 4] and ADOPTS the Report and Recommendation of the Magistrate Judge [Docket No. 3]. Accordingly, IT IS HEREBY ORDERED that petitioner's application for habeas corpus relief [Docket No. 1] is DISMISSED WITHOUT PREJUDICE.