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Penor v. State

United States District Court, W.D. Arkansas, Fayetteville Division

October 17, 2017

RICHARD JOSEPH PENOR, JR. PETITIONER
v.
STATE OF ARKANSAS RESPONDENT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE

         Before the Court is the Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 filed by Petitioner, Richard Joseph Penor, Jr. (“Penor”) on April 10, 2017. (ECF No. 1). The State of Arkansas filed its Response on August 14, 2017. (ECF No. 14). Petitioner did not file a reply. The matter is ready for Report and Recommendation.

         I. Background

         Penor is an out-of-state prisoner serving a sentence imposed on February 27, 2017 by a Colorado state court in an institution of the Colorado Department of Corrections. (ECF No. 1, ¶¶ 2, 3, 4).

         On April 10, 2017, Penor filed his pro se Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (the “Petition”) in the United States District Court for the Eastern District of Arkansas. (ECF No. 1). On April 21, 2017, the case was transferred from the Eastern District of Arkansas to this Court. (ECF No. 2). The Petition raises four grounds: (1) that charges pending against him in the Circuit Court of Benton County, Arkansas “have not been brought to court for 12 years now” and are barred by the statute of limitations; (2) that he was charged with a violation of Arkansas' Hot Check law and has “still not been brought to court for these charges”; (3) that charges against him for violation of A.C.A. § 5-37-302 “are outside the scope of law” as well as Federal Rules of Civil Procedure and Federal Rules of Criminal Procedure; and, (4) that Benton County was notified of his “intent to plead my case by mail to no avail, ” and they have failed to prosecute him. (ECF No. 1, pp. 6-8). For relief, Penor wants all charges, as well as the active warrant, dismissed, or “extradite me to Bentonville to be held accountable for my crime.” (ECF No. 1, p. 8).

         The State of Arkansas filed its Response to the Motion on August 14, 2017. (ECF No. 14). A copy of the Benton County Circuit Clerk's file, Case No. 04CR-02-1093, was attached to the State's Response. (ECF No. 14-1). A more legible copy of the Benton County Circuit Clerk's file, Case No. 04CR-02-1093, was subsequently filed on August 17, 2017. (ECF No. 17).

         Penor did not file a reply.

         II. Discussion

         For the reasons discussed below, this Court lacks subject matter jurisdiction to consider Penor's Motion.

         28 U.S.C. § 2241(c)(3) provides that the writ of habeas corpus shall not extend to a prisoner unless - “he is in custody in violation of the Constitution or laws or treaties of the United States.”

         Where a warrant of detainer has been filed against a defendant incarcerated in another jurisdiction, the defendant is “in custody” of the detainer in the tradional habeas corpus sense. See Becker v. Nebraska, 310 F.Supp. 1275, 1281 (1970).

         The “Interstate Agreement on Detainers” (IAD) is a compact among 48 states, the District of Columbia, and the federal government which enables a participating state to gain custody of a prisoner incarcerated in another jurisdiction in order to try him or her on criminal charges. 18 U.S.C.App. § 2; Reed v. Farley, 512 U.S. 339, 341 (1994). While the IAD is a state law, see A.C.A. § 16-95-101 et seq., it is also a law of the United States as well, and a violation of the IAD may entitle a state prisoner to federal habeas corpus relief. Reed, 512 U.S. at 347. Unfortunately for Penor, there is no showing that he is “in custody” subject to a detainer issued by the Benton County Prosecuting Attorney or Benton County Circuit Court.

         Lacking in Penor's Petition is any allegation that a detainer has been lodged against him pursuant to the IAD. While Penor refers to “unknown warrant #F272005” (ECF No. 1, p. 2), “unknown warrant #272005” (ECF No. 1, p. 3), “warrant #F272005” (ECF No. 1, p. 6), and states, “[t]here has been a warrant for my arrest for over (12) twelve years with a 350 mile radius extridition (sic) from the State of Arkansas, ” he does not allege that a detainer from a prosecuting authority in Arkansas has been lodged with the Colorado Department of Correction where he is presently incarcerated.

         The Benton County Circuit Clerk's file contains a warrant issued on May 22, 2002 for Penor's arrest on an Arkansas Hot Check law violation which states “will extradite 300 miles.” (ECF No. 17-1, p. 4). Penor was arrested pursuant that warrant on September 11, 2002 (ECF No. 17-1, p. 8), and he made his initial appearance before a Judge on September 12, 2002 (ECF No. 17-1, pp. 6-7). Penor was released on a $3, 500 bond and ordered to appear in Benton County Circuit Court on September 23, 2002. (Id.). Penor appeared with his counsel on September 23, 2002, and his arraignment was rescheduled to October 28, 2002. (ECF No. 17-1, p. 12). He appeared with his counsel on October 28, 2002, and his arraignment was again rescheduled to November 18, 2002. (ECF No. 17-1, p. 13). Penor appeared with his counsel on November 18, 2002, at which time he entered a not guilty plea, and an omnibus hearing was set on January 6, 2003 with a jury trial scheduled on March 25, 2003. (ECF No. 17-1, p. 17). Penor failed to appear on January 6, 2003 for the omnibus hearing, and it was noted that a “Bench warrant shall issue.” (ECF No. 17-1, p. 20). The arrest warrant for Penor's failure to appear on January 6, 2003 was then issued on January 10, 2003, and it does not contain the “will extradite 300 miles” language included in his original arrest warrant on the underlying charge. (ECF No. 17-1, ...


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