UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 92-1970 Summary Calendar
KENNETH R. KOETTING,
Petitioner-Appellant,
VERSUS
R.G. THOMPSON, Warden, Agent for Dick D. Moore, Director Missouri Dept. of Corrections and Human Resources,
Respondent-Appellee.
Appeal from the United States District Court for the Northern District of Texas (June 2, 1993)
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:
BACKGROUND
Kenneth R. Koetting, a federal prisoner, filed a petition for
writ of habeas corpus naming as defendant, R.G. Thompson, Warden,
FCI-Seagoville, Texas, in his capacity as agent for Dick D. Moore,
Director, Missouri Department of Corrections & Human Resources,
challenging a detainer lodged against him by the Missouri Board of
Probation and Parole. Koetting alleged that the Missouri Board of
Probation and Parole had refused to divulge the reason for the detainer and that the board's inaction was preventing him from
preparing a defense to the parole revocation proceeding, which will
take place after he is released from federal custody. Koetting
further alleged that the detainer had a negative effect on his
participation in rehabilitation programs and upon his custody
status at FCI-Seagoville.
Magistrate Judge Sanderson granted in forma pauperis (IFP) and
referred the case to himself "for further proceedings and/or his
findings and recommendation." The magistrate judge found that
Koetting had not satisfied the "in custody" prerequisite for habeas
relief and that the district court did not have jurisdiction over
the Missouri Department of Corrections, Board of Probation and
Parole. The magistrate judge also concluded that, to the extent
that Koetting's petition put at issue conditions of his confinement
at FCI-Seagoville, he had failed to properly identify the Warden as
a defendant in the action and had failed to exhaust his federal
administrative remedies.* The district court adopted the
magistrate judge's recommendation and dismissed the petition.
OPINION
Koetting complains that the magistrate judge unconstitution-
ally referred the matter to himself in violation of 28 U.S.C.
* Although the district court's characterization of Koetting's claims as relating to "conditions of confinement" is questionable, Koetting does not contest on appeal the district court's conclusions (1) that the Warden at FCI-Seagoville is only a nominal party and (2) that Koetting has failed to exhaust administrative remedies. Issues are waived if they are not briefed. Fed. R. App. P. 28(a)(4); see Marple v. Kurzweg, 902 F.2d 397, 399 n.2 (5th Cir. 1990).
2 § 636, which requires that such referrals be made by an Article III
judge. While the procedure employed in this case may be flawed,
see United States v. Raddatz, 447 U.S. 667, 685-86, 100 S. Ct.
2406, 65 L. Ed. 2d 424 (1980) (Blackmun, J., concurring)
(Magistrates Act is constitutional because district courts retain
"complete supervisory control" over activities of magistrate
judges), Koetting has waived the issue by failing to preserve his
objection.** See Archie v. Christian, 808 F.2d 1132, 1134 (5th Cir.
1987) (en banc).
Koetting argues that the district court erred by concluding
that Koetting was not "in custody" and that, accordingly, it had no
jurisdiction. Koetting also contends that the magistrate judge
erred by dismissing the complaint without requiring the defendants
to respond to the petition by issuing a show cause order because
his petition had an arguable basis in law.
The federal district courts have jurisdiction to consider
habeas petitions of persons who are "in custody in violation of the
Constitution or laws or treaties of the United States." See Maleng
v. Cook, 490 U.S. 488, 490, 109 S. Ct. 1923, 104 L. Ed. 2d 540
(1989) (emphasis in original). In Maleng, the Court held that a
federal prisoner incarcerated in California was "in custody" for
purposes of his habeas challenge to a Washington state sentence
which was scheduled to commence after the petitioner's release from
federal custody. 490 U.S. at 493. Under Maleng, Koetting is "in
** Koetting is litigating this issue in another case, "Koetting v. Dallas County Commissions Court, et al.," No. 3-92CV- 562-H. He expressly withheld his objection in the instant case.
3 custody" for purposes of the district court's habeas jurisdiction.
Both the federal district court for the Northern District of Texas
and the district courts in Missouri have concurrent jurisdiction
over the habeas petition. Braden v. 30th Judicial Circuit Court,
410 U.S. 484, 499 n.15, 93 S. Ct. 1123, 35 L. Ed. 2d 443 (1973).
The magistrate judge mischaracterized the holdings in Moody v.
Daggett, 429 U.S. 78, 97 S. Ct. 274, 50 L. Ed. 2d 236 (1976),
Tijerina v. Thornburgh, 884 F.2d 861 (5th Cir. 1989), and Cook v.
United States Atty. Gen., 488 F.2d 667 (5th Cir.), cert. denied,
419 U.S. 846 (1974). The Moody and Cook Courts held that a
prisoner against whom a detainer had been lodged in connection with
a parole violation was not "in custody" and, therefore, did not
have a right to an immediate parole revocation hearing. Moody, 429
U.S. at 87-88; Cook, 488 F.2d at 671. In Tijerina, the Court held
that a prisoner was not entitled to credit against a parole
violation sentence for time served while a detainer related to the
parole violation was in effect. 885 F.2d at 865-66. Moody, Cook,
and Tijerina do not answer the question whether a prisoner against
whom a detainer has been lodged is "in custody" for purposes of the
habeas statutes.
Nevertheless, Moody is arguably controlling in this case
because its holding is predicated on the Court's conclusion that
the lodging of a detainer against a prisoner in connection with a
parole violation does not impinge a 14th Amendment liberty
interest. See Moody, 429 U.S. at 86-87. Koetting is entitled to
habeas relief only if he is "in custody in violation of the
4 Constitution or laws or treaties of the United States." Maleng,
490 U.S. at 490. Under Moody, Koetting does not have a
constitutional claim based upon a loss of liberty.
Koetting contends, however, that the actions of the Missouri
authorities are interfering with his ability to defend against the
parole revocation proceedings. In United States v. Williams, 558
F.2d 224 (5th Cir. 1977), the Court noted that Moody had left
unanswered the question "whether due process is violated when,
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UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 92-1970 Summary Calendar
KENNETH R. KOETTING,
Petitioner-Appellant,
VERSUS
R.G. THOMPSON, Warden, Agent for Dick D. Moore, Director Missouri Dept. of Corrections and Human Resources,
Respondent-Appellee.
Appeal from the United States District Court for the Northern District of Texas (June 2, 1993)
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:
BACKGROUND
Kenneth R. Koetting, a federal prisoner, filed a petition for
writ of habeas corpus naming as defendant, R.G. Thompson, Warden,
FCI-Seagoville, Texas, in his capacity as agent for Dick D. Moore,
Director, Missouri Department of Corrections & Human Resources,
challenging a detainer lodged against him by the Missouri Board of
Probation and Parole. Koetting alleged that the Missouri Board of
Probation and Parole had refused to divulge the reason for the detainer and that the board's inaction was preventing him from
preparing a defense to the parole revocation proceeding, which will
take place after he is released from federal custody. Koetting
further alleged that the detainer had a negative effect on his
participation in rehabilitation programs and upon his custody
status at FCI-Seagoville.
Magistrate Judge Sanderson granted in forma pauperis (IFP) and
referred the case to himself "for further proceedings and/or his
findings and recommendation." The magistrate judge found that
Koetting had not satisfied the "in custody" prerequisite for habeas
relief and that the district court did not have jurisdiction over
the Missouri Department of Corrections, Board of Probation and
Parole. The magistrate judge also concluded that, to the extent
that Koetting's petition put at issue conditions of his confinement
at FCI-Seagoville, he had failed to properly identify the Warden as
a defendant in the action and had failed to exhaust his federal
administrative remedies.* The district court adopted the
magistrate judge's recommendation and dismissed the petition.
OPINION
Koetting complains that the magistrate judge unconstitution-
ally referred the matter to himself in violation of 28 U.S.C.
* Although the district court's characterization of Koetting's claims as relating to "conditions of confinement" is questionable, Koetting does not contest on appeal the district court's conclusions (1) that the Warden at FCI-Seagoville is only a nominal party and (2) that Koetting has failed to exhaust administrative remedies. Issues are waived if they are not briefed. Fed. R. App. P. 28(a)(4); see Marple v. Kurzweg, 902 F.2d 397, 399 n.2 (5th Cir. 1990).
2 § 636, which requires that such referrals be made by an Article III
judge. While the procedure employed in this case may be flawed,
see United States v. Raddatz, 447 U.S. 667, 685-86, 100 S. Ct.
2406, 65 L. Ed. 2d 424 (1980) (Blackmun, J., concurring)
(Magistrates Act is constitutional because district courts retain
"complete supervisory control" over activities of magistrate
judges), Koetting has waived the issue by failing to preserve his
objection.** See Archie v. Christian, 808 F.2d 1132, 1134 (5th Cir.
1987) (en banc).
Koetting argues that the district court erred by concluding
that Koetting was not "in custody" and that, accordingly, it had no
jurisdiction. Koetting also contends that the magistrate judge
erred by dismissing the complaint without requiring the defendants
to respond to the petition by issuing a show cause order because
his petition had an arguable basis in law.
The federal district courts have jurisdiction to consider
habeas petitions of persons who are "in custody in violation of the
Constitution or laws or treaties of the United States." See Maleng
v. Cook, 490 U.S. 488, 490, 109 S. Ct. 1923, 104 L. Ed. 2d 540
(1989) (emphasis in original). In Maleng, the Court held that a
federal prisoner incarcerated in California was "in custody" for
purposes of his habeas challenge to a Washington state sentence
which was scheduled to commence after the petitioner's release from
federal custody. 490 U.S. at 493. Under Maleng, Koetting is "in
** Koetting is litigating this issue in another case, "Koetting v. Dallas County Commissions Court, et al.," No. 3-92CV- 562-H. He expressly withheld his objection in the instant case.
3 custody" for purposes of the district court's habeas jurisdiction.
Both the federal district court for the Northern District of Texas
and the district courts in Missouri have concurrent jurisdiction
over the habeas petition. Braden v. 30th Judicial Circuit Court,
410 U.S. 484, 499 n.15, 93 S. Ct. 1123, 35 L. Ed. 2d 443 (1973).
The magistrate judge mischaracterized the holdings in Moody v.
Daggett, 429 U.S. 78, 97 S. Ct. 274, 50 L. Ed. 2d 236 (1976),
Tijerina v. Thornburgh, 884 F.2d 861 (5th Cir. 1989), and Cook v.
United States Atty. Gen., 488 F.2d 667 (5th Cir.), cert. denied,
419 U.S. 846 (1974). The Moody and Cook Courts held that a
prisoner against whom a detainer had been lodged in connection with
a parole violation was not "in custody" and, therefore, did not
have a right to an immediate parole revocation hearing. Moody, 429
U.S. at 87-88; Cook, 488 F.2d at 671. In Tijerina, the Court held
that a prisoner was not entitled to credit against a parole
violation sentence for time served while a detainer related to the
parole violation was in effect. 885 F.2d at 865-66. Moody, Cook,
and Tijerina do not answer the question whether a prisoner against
whom a detainer has been lodged is "in custody" for purposes of the
habeas statutes.
Nevertheless, Moody is arguably controlling in this case
because its holding is predicated on the Court's conclusion that
the lodging of a detainer against a prisoner in connection with a
parole violation does not impinge a 14th Amendment liberty
interest. See Moody, 429 U.S. at 86-87. Koetting is entitled to
habeas relief only if he is "in custody in violation of the
4 Constitution or laws or treaties of the United States." Maleng,
490 U.S. at 490. Under Moody, Koetting does not have a
constitutional claim based upon a loss of liberty.
Koetting contends, however, that the actions of the Missouri
authorities are interfering with his ability to defend against the
parole revocation proceedings. In United States v. Williams, 558
F.2d 224 (5th Cir. 1977), the Court noted that Moody had left
unanswered the question "whether due process is violated when,
although a detainer has lawfully been filed against the prisoner,
the delay in execution actually impairs his ability to contest the
fact of violation or to present mitigating evidence." Id. at 227;
see United States v. Fisher, 895 F.2d 208, 210-11 (5th Cir.), cert.
denied, 495 U.S. 940 (1990).
Although the magistrate judge found that Koetting had "failed
to state a claim over which this court has jurisdiction," the case
was apparently dismissed as legally frivolous under 28 U.S.C. §
1915(d). Under section 1915(d), an IFP complaint may be dismissed
by the district court if it determines that the action is frivolous
or malicious. A complaint is "frivolous" if it "lacks an arguable
basis either in law or in fact." Denton v. Hernandez, ___ U.S.
___, 112 S. Ct. 1728, 1733, 118 L. Ed. 2d 340 (1992). Although
Koetting's allegations of prejudice are general and it is
questionable whether he will be able to show prejudice under
Williams, Koetting's petition has an arguable basis in law, and the
district court improperly dismissed it as being legally frivolous.
5 For these reasons, we vacate the district court's judgment and
remand the cause for further proceedings consistent herewith.
Finally, Koetting contends that the district court failed to
conduct a de novo review as required by 28 U.S.C. § 636(b).
Although the district court stated that it had conducted the
"required independent review" and had considered Koetting's
objections, Koetting argues that the failure of the district court
to make specific record references or to discuss the issues
specifically is indicative of his failure to conduct a de novo
review.
Because Koetting filed written objections to the magistrate
judge's findings, he was entitled to a de novo review by the
district court. United States v. Wilson, 864 F.2d 1219, 1221 (5th
Cir.), cert. denied, 492 U.S. 918 (1989). While this Court has
remanded cases in which the district court's order adopting a
magistrate judge's findings indicates that the district court
applied the wrong standard of review, see id., or failed to review
pertinent portions of the record, see Hernandez v. Estelle, 711
F.2d 619, 620 (5th Cir. 1983), the Court will "assume that the
district court did its statutorily commanded duty in the absence of
evidence to the contrary." Longmire v. Guste, 921 F.2d 620, 623
(5th Cir. 1991). There is no evidence that the district court
failed to conduct a de novo review, and the cases cited by Koetting
do not stand for the proposition that the district court should be
required to reiterate the findings and conclusions of the
magistrate judge. See Nettles v. Wainwright, 677 F.2d 404, 406-07
6 (5th Cir. Unit B 1982) (en banc) (Federal Magistrates Act enacted
to increase the overall efficiency of the judiciary).
Koetting also argues that the district court's disposition of
this case reflects its "purposeful and intentional bias and animus
against pro-se litigants." While the district court misconstrued
whether it had jurisdiction to hear this matter, the dismissal was
based on a reasoned memorandum by the magistrate judge. There is
no support in the record for the notion that Koetting's petition
was reviewed more harshly because he is proceeding pro se.
We vacate the judgment of the district court and remand for
further proceedings consistent herewith.
c:br:opin:92-1970u 7