48 F3d 1232 Pope v. E Nagle

Freddie Glen POPE, Petitioner-Appellant,
John E. NAGLE, Warden, State Prison of the State of Alabama,

No. 94-3354.
(D.C. No. 94-CV-3306)

United States Court of Appeals, Tenth Circuit.

March 3, 1995.

48 F.3d 1232
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.


Before ANDERSON, BALDOCK, and BRORBY, Circuit Judges.2

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Petitioner Freddie Glen Pope filed the instant pro se habeas corpus petition pursuant to 28 U.S.C. 2254 in the United States District Court for the District of Kansas. In his petition, Petitioner sought relief from his state sentence and conviction on the grounds that his extradition from the State of Kansas to the State of Alabama violated his state statutory rights under the Uniform Criminal Extradition Act. We dismiss the appeal.


At the time he filed the instant petition, Petitioner was (and remains) incarcerated at the William E. Donaldson Correctional Facility, Bessemer, Alabama, serving a sentence of life without parole on a conviction for attempted murder. The district court dismissed the petition because it concluded that Petitioner could not challenge the extradition proceedings in the asylum state (Kansas) after he was extradited to the demanding state (Alabama). Consequently, the district court dismissed the petition. Further, the district court declined to issue Petitioner a certificate of probable cause pursuant to 28 U.S.C. 2253 and Fed. R.App. P. 22(b), and denied him leave to proceed in forma pauperis. This appeal followed.


On appeal, Petitioner asserts the district court erred by concluding that it could not entertain the writ of habeas corpus he filed in the asylum state of Kansas because he filed the petition after he was extradited to the demanding state of Alabama.3 We disagree.


We review the district court's conclusions of law regarding a writ of habeas corpus de novo. Martin v. Kaiser, 907 F.2d 931, 933 (10th Cir.1990). "Before a fugitive in custody is extradited to the demanding state, he may challenge the authority of the asylum state by seeking a federal writ of habeas corpus." Gee v. State of Kansas, 912 F.2d 414, 416 (10th Cir.1990) (emphasis added) (citing Michigan v. Doran, 439 U.S. 282, 289 (1978)). However, " 'once the prisoner has been returned to the demanding state, the writ of habeas corpus is no longer available to challenge his confinement upon grounds arising in the asylum state.' " Id. (quoting Brown v. Nutsch, 619 F.2d 758, 763 (8th Cir.1980)).


Applying these principles to the instant case we hold the district court correctly concluded it could not entertain Petitioner's habeas corpus challenge to the extradition proceedings in Kansas because he filed the petition after he was extradited to Alabama. See id. Thus, pursuant to Fed. R.App. P. 22(b) we decline to issue Petitioner a certificate of probable cause to proceed on appeal. See Barefoot v. Estelle, 463 U.S. 880, 892-94 (1983). Additionally, because Petitioner has failed to advance a rational argument on the law and facts in support of the issue raised on appeal, we decline to grant him leave to proceed in forma pauperis. See Coppedge v. United States, 369 U.S. 438, 448 (1962). Accordingly, we DENY Petitioner's request for a certificate of probable cause and for leave to proceed in forma pauperis, and DISMISS the appeal.


This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470


After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case therefore is ordered submitted without oral argument

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Petitioner additionally attempts to raise as an appellate issue alleged defects with his extradition under the Uniform Criminal Extradition Act. We do not address Petitioner's substantive claim, however, because we conclude the district court properly determined it could not address his petition for a writ of habeas corpus