United States District Court, W.D. Arkansas, Fayetteville Division
RICHARD JOSEPH PENOR, JR. PETITIONER
STATE OF ARKANSAS RESPONDENT
MAGISTRATE JUDGE'S REPORT AND
HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE
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.
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).
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).
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
did not file a reply.
reasons discussed below, this Court lacks subject matter
jurisdiction to consider Penor's Motion.
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.”
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).
“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.
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.
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, ...