Ray Knox, Petitioner-appellant, v. the State of Wyoming, Respondent-appellee, 959 F.2d 866 (10th Cir. 1992)

Petitioner-appellant appeals the denial of his habeas corpus petition, 28 U.S.C. § 2241, challenging the validity of a state detainer (Wyoming) filed against him at the federal penitentiary in Leavenworth, Kansas. Petitioner claims that art. IV(c) of the Interstate Agreement on Detainers Act (IADA), 18 U.S.C.A.App., was violated because he was not brought to trial within 120 days of his arrival in Wyoming. The district court dismissed the petition for failure to exhaust state remedies and denied a certificate of probable cause and leave to proceed on appeal in forma pauperis.

Within thirty days of the district court's September 6, 1991 order denying his habeas petition, Petitioner simultaneously filed his notice of appeal and a motion for reconsideration of the judgment, ostensibly pursuant to Fed. R. Civ. P. 60(b). Petitioner also filed motions for a certificate of probable cause and to proceed in forma pauperis on appeal. The district court denied all pending motions the next day, September 17, 1991. On September 26, 1991, Petitioner filed his "Application for Certificate of Probable Cause to Appeal" in the court of appeals.

The government contends that we lack jurisdiction over Petitioner's appeal. Though styled a motion for reconsideration pursuant to Fed. R. Civ. P. 60(b), Petitioner's motion was in reality a motion to alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e) because it was filed within ten days of the judgment. Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). Because the notice of appeal was filed before the district court resolved the Rule 59(e) motion, the notice of appeal was of no effect. Fed. R. App. P. 4(a) (4); Dalton v. First Interstate Bank, 863 F.2d 702, 704 (10th Cir. 1988). Petitioner did not file another notice of appeal in district court subsequent to the denial of his Rule 59(e) motion. But he did file an application for a certificate of probable cause in this court on September 26, 1991, identifying the parties to the appeal and the district court order appealed from. See Fed. R. App. P. 3(c) (contents of a notice of appeal).

Resolution of the jurisdictional issue is controlled completely by Smith v. Barry, --- U.S. ----, 112 S. Ct. 678, 682, 116 L. Ed. 2d 678 (1992), in which the Supreme Court held that an informal brief filed with the Court of Appeals within the Fed. R. App. P. 4 time limits constitutes a valid notice of appeal. Recognizing that an application for a certificate of probable cause may serve as a notice of appeal,¹  we treat the pro se application for a certificate of probable cause as a misfiled²  notice of appeal and consider the merits of the appeal.

Petitioner is serving a five-year federal sentence, but was returned to Wyoming pursuant to the IADA to be retried on a conspiracy to commit murder charge. See Jones v. State, 777 P.2d 54, 61 (Wyo.1989) (reversing conviction of Petitioner and his codefendant and remanding for retrial). Petitioner's codefendant was retried and convicted. Petitioner then pleaded guilty to a lesser offense, with the understanding that the judgment would be deferred until the codefendant's appeal was decided by the Wyoming Supreme Court. The codefendant's appeal contained a presumably similar IADA claim. Petitioner also was allowed to petition the Wyoming Supreme Court for a writ of certiorari to review the state district court's denial of his IADA claim.

The Wyoming Supreme Court denied the petition, and decided the codefendant's appeal adversely. Jones v. State, 813 P.2d 629, 631-32 (Wyo.1991). The State represents that a judgment has yet to be entered against Petitioner; he has yet to be sentenced and appeal directly his IADA claims. Appellee's Answer Brief at 5. We agree with the district court that Petitioner has failed to exhaust his state remedies.³  See Martens v. Shannon, 836 F.2d 715, 716-18 (1st Cir. 1988); Dickerson v. Louisiana, 816 F.2d 220, 224-29 (5th Cir.), cert. denied, 484 U.S. 956, 108 S. Ct. 352, 98 L. Ed. 2d 378 (1987); Cain v. Petrovsky, 798 F.2d 1194, 1195 (8th Cir. 1986). Petitioner merely seeks to litigate a federal defense to a criminal charge prematurely in federal court; no special circumstances excuse Petitioner from the exhaustion requirement. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 488-93, 93 S. Ct. 1123, 1126-29, 35 L. Ed. 2d 443 (1973). Wyoming should be allowed to resolve Petitioner's federal claims in the first instance.

Petitioner's request to proceed in forma pauperis is GRANTED. However, Petitioner has failed to make a substantial showing of the denial of a federal right, see Lozada v. Deeds, --- U.S. ----, 111 S. Ct. 860, 861-62, 112 L. Ed. 2d 956 (1991); thus, Petitioner's request for a certificate of probable cause, 28 U.S.C. § 2253, is DENIED, and the appeal is DISMISSED.

SO ORDERED.