931 F.2d 896
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Robert F. COVELLI, Petitioner-Appellant,
Richard H. RISON, Warden, Respondent-Appellee.
United States Court of Appeals, Ninth Circuit.
Submitted April 1, 1991.*
Decided May 1, 1991.
Before WILLIAM A. NORRIS, CYNTHIA HOLCOMB HALL and TROTT, Circuit Judges.
Appellant is a federal prisoner facing state charges of murder and armed robbery. He appeals the district court's characterization and dismissal of his action as a petition for habeas corpus, rather than a civil rights claim for injunctive relief.
In May 1983, Covelli was convicted in the Northern District of Illinois and sentenced to 25 years in prison for violation of the Hobbs Act, 18 U.S.C. Sec. 1951, as well as conspiracy to transport stolen property interstate and interstate transportation of stolen property in violation of 18 U.S.C. Secs. 371 and 2314, respectively. In July 1985, appellant Covelli was indicted in Illinois for six counts of murder and armed robbery. If convicted, he faces a possible death sentence. To face trial on the state charges, Covelli was transferred from federal custody to an Illinois county jail pursuant to the Interstate Agreement on Detainers ("IAD"), 18 U.S.C.App. Sec. 2. After appealing the charges, Covelli was transferred back to federal custody pending resolution of his claims.
Appellant subsequently filed a civil rights action in federal district court seeking a declaratory judgment that the State of Illinois violated his constitutional rights by failing to dismiss the indictment against him. He also sought preliminary and permanent injunction to prevent the federal prison from retransferring him to Illinois to fact trial on the state charges.
The district court, following a magistrate's recommendation, construed Covelli's civil rights claim as a petition for a writ of habeas corpus, and dismissed the petition without prejudice. On appeal, Covelli contends that the district court improperly characterized his claim as a petition for habeas corpus, rather than a civil rights action for injunctive relief. He argues further that the district court denied improperly his request for injunctive relief. We reverse and remand.
We must first decide whether the district court properly characterized Covelli's action as a petition for habeas corpus. It is undisputed that "[w]here a state prisoner challenges the fact or duration of his confinement, his sole federal remedy is a writ of habeas corpus." Young v. Kenny, 907 F.2d 874, 875-76 (9th Cir.1989), cert. denied, --- S.Ct. ---- 190 WL 138172 (1991) (citing Preiser v. Rodriguez, 411 U.S. 475, 489-90 (1973)). Covelli contends, however, that the federal habeas requirements are not applicable to this dispute because he is neither contesting his federal conviction, nor been placed in custody pursuant to state law. Relying on Burros v. Turnbo, 743 F.2d 693 (9th Cir.1984), cert. granted, 4474 U.S. 816, vacated on other grounds, 474 U.S. 1016, Covelli argues that he was entitled to seek an injunction in federal court on the ground that his transfer would violate a treaty1 between the federal government and the states.
We agree with Covelli that Burros controls this dispute. In that case, this circuit upheld a permanent injunction that prevented a federal warden from transferring a federal prisoner to state custody. The court held that an injunction was proper because the transfer would violate the IAD. The Burros court stated: "Because a violation of the IAD offends not only state, but also federal law, jurisdiction to adjudicate IAD violations lies co-equally with both sovereigns." Id. at 701 (citations omitted).
Because Burros is indistinguishable from the facts in this dispute, we hold that the district court's dismissal of Covelli's claim was improper. The government's reliance on Rose v. Morris, 619 F.2d 42, 43 (9th Cir.1980) and Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 488 (1973) is misplaced. Although these cases hold that federal prisoners protesting a state detainer are entitled to a writ of habeas corpus, they do not require that they bring a habeas petition.
Because we hold that Covelli was entitled to avail himself of the civil rights laws, we reject the government's claim that we have no jurisdiction to hear Covelli's appeal. Although the government argues that the district court did not meet the certification requirements of 18 U.S.C. Sec. 2253 and Fed.R.App.P. 22(b),2 those requirements only apply to habeas petitions, not to civil rights actions.
We therefore REVERSE the district court's dismissal of Covelli's action and REMAND for consideration of Covelli's claim for injunctive relief.
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); Circuit Rule 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3
In addition to facilitating the transfer of prisoners between different sovereigns, the IAD prevents a sovereign that has transferred a prisoner from re-transferring him before the completion of his trial
18 U.S.C. Sec. 2253 states in relevant part:
An appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a State court, unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause.
Fed.R.App.P. 22(b) also requires the district judge to "either issue a certificate of probable cause or state the reasons why such a certificate should not issue."