Powell v. Stuart

----ooOoo----

Daniel Befakadu Powell,
Petitioner,

v.

Shannon Lee Stuart,
Respondent.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020356-CA

F I L E D
June 13, 2002 2002 UT App 202 -----

Original Proceeding in this Court

Attorneys:
Daniel Befakadu Powell, Ray Brook, New York, Petitioner Pro Se

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Before Judges Bench, Davis, and Thorne.

PER CURIAM:

Petitioner Daniel Befakadu Powell filed a "Petition for Writ of Habeas Corpus" seeking to set aside a stipulated settlement in a paternity action pending in Third District Court and to obtain physical visitation with the child. The petition names the mother, who is physical custodian of the child, as Respondent. This court previously dismissed a petition seeking mandamus relief against the district court, including an order compelling that court to allow recission of the settlement. See Powell v. Honorable Glenn Iwasaki and Comm'r Thomas Arnett, No. 20010861-CA, slip op. (Utah Ct. App. Nov. 29, 2001). The present petition seeks, among other things, an order: (1) overturning the district court's decisions; (2) allowing Powell to withdraw his stipulation; (3) granting physical visitation with the child; and (4) restraining the child's natural mother from removing the child from Utah, changing the child's name, or similar actions.

A proper habeas corpus petition may be used to obtain custody of a child claimed to be unlawfully detained. See Tillman v. Cook, 855 P.2d 211, 224 n.1 (Utah 1993)(Stewart, J., dissenting); In re Hales, 538 P.2d 1034, 1035 (Utah 1975). However, Powell is not entitled to habeas corpus relief from this court for several reasons. First, a proper petition for writ of habeas corpus must be filed in district court, rather than in an appellate court. See Utah R. App. P. 20(a) (requiring referral of habeas corpus petition to district court). Second, Powell does not allege illegal detention of the child based upon any presently enforceable right he has to physical custody of the child. Third, the petition seeks substantially the same relief Powell sought unsuccessfully in his previous petition seeking a writ of mandamus directed to the Third District Court. Fourth, even if construed as another request for mandamus relief, Powell has not alleged facts demonstrating that he has exhausted his remedies in district court.

Because the purported "Petition for Writ of Habeas Corpus" does not make a claim based upon alleged unlawful detention by the Respondent, we decline to refer it to the district court under rule 20(a) of the Utah Rules of Appellate Procedure. If Powell elects to file an appropriate petition for writ of habeas corpus, it should be filed directly in the district court. For the reasons set forth above, we also deny the motion for a restraining order and injunctive relief directed to the Respondent. This relief should be sought in district court. Accordingly, we dismiss the petition for writ of habeas corpus.
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
William A. Thorne Jr., Judge