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Gilmore v. Kizziah

United States District Court, E.D. Kentucky, Southern Division

May 24, 2017

TYGANDA GILMORE, Petitioner,
v.
GREGORY KIZZIAH, Warden, [1]Respondent.

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves United States District Judge.

         Inmate Tyganda Gilmore was previously confined at federal penitentiaries in the Eastern District of Kentucky. Gilmore filed two petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The first petition was filed in this case, which the Court will refer to as Gilmore I. The second petition was assigned to another Judge in this district. See Gilmore v. Ormond, No. 6: 16-cv-237-GFVT (E.D. Ky. 2016). The Court will refer to the second petition as Gilmore II. Since the two cases involve overlapping issues, the Court takes judicial notice of the documents filed by Gilmore in each case, and it will refer to those documents by citing the record in either Gilmore I or Gilmore II.

         The habeas petition in Gilmore I is now before this Court for an initial review. See 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F.App'x 544, 545 (6th Cir. 2011). For the reasons set forth below, the Court will deny that petition.

         I.

         In August 2005, a Magistrate in Richland County, South Carolina issued an arrest warrant against Gilmore for allegedly committing “assault/simple assault and battery.” [Record No. 1-2 at 23] Approximately two months later, a Family Court Judge in the same county issued a bench warrant against Gilmore for allegedly failing to pay child support. [Record No. 1-2 at 25-26] Before these state charges could be resolved, Gilmore pled guilty to a federal drug-related charge and he began serving time in federal prison. See United States v. Gilmore, No. 3: 05-cr-759-JFA (D.S.C. July 27, 2006). Thereafter, the Richland County Sherriff's Office lodged a detainer against Gilmore with the Federal Bureau of Prisons (“BOP”). [Record No. 1-2 at 33] It appears that this initial detainer only referred to the outstanding warrant for assault. [Record No. 1-2 at 33]

         In October 2006, pursuant to the Interstate Agreement on Detainers Act (“IADA”), the BOP gave Gilmore a form notifying him of the outstanding warrant against him for assault. [Record No. 1-2 at 12]. Gilmore signed that form and another document indicating that he wished to exercise his rights under the IADA and, therefore, was formally requesting a final disposition on the assault charge. [Record No. 1-2 at 11-12] BOP officials then sent these forms and other letters to the Richland County Solicitor's Office, informing that office that Gilmore requested disposition of the assault charge. [Record No. 1-2 at 6-13] The BOP noted that, under the IADA, “Inmate Gilmore is to be brought to trial on these charges within 180 days from the date the forms were received in your office as noted on the certified mail receipt.” [Record No. 1-2 at 13]

         In January 2007, the Richland County Solicitor's Office sent a response to one of the BOP officials acknowledging the 180-day time period, but adding that it had no charges pending against Gilmore. [Record No. 1-2 at 14] The solicitor's office explained that “[i]t could be that this warrant belongs to the Richland County Sheriff's Department and has not been received in our office.” [Record No. 1-2 at 14] The Richland County Solicitor's Office then suggested that the BOP contact the Richland County Sheriff's Department directly. [Record No. 1-2 at 14]

         A few days later, a BOP official sent another letter to the Richland County Solicitor's Office, indicating that “the necessary [IADA] paperwork was sent to your office as the primary prosecutor for Richland County, as we believe your office is the primary authority for prosecution and extradition matters in your county.” [Record No. 1-2 at 15] The BOP official then added that “[i]t was this office's intention that your office would forward the paperwork to the appropriate Court in the case you did not have such jurisdiction. In any event, the warrant specifies the case is assigned to Hopkins Magistrate Court, and therefore, I will forward the necessary paperwork directly to the Hopkins Magistrate Court.” [Record No. 1-2 at 15].

         The BOP then sent a letter to the Richland County Magistrate - Hopkins Division, indicating that Gilmore had “requested disposition of pending charges in your jurisdiction pursuant to the . . . IADA.” [Record No. 1-2 at 17]. The BOP also sent another letter to the Richland County Solicitor's Office and more letters to the Magistrate again stating that Gilmore was seeking final disposition of the pending charges pursuant to the IADA. [Record No. 1-2 at 19-21] However, it is not clear whether the BOP attempted to directly contact the Richland County Sherriff's Department, as the Richland County Solicitor's Office had suggested.

         Gilmore claims that he did not hear anything from Richland County within the 180-day time frame established by the IADA. [Record No. 1 at 6-7] In fact, Gilmore suggests that nothing happened until 2011, when the Richland County Sherriff's Department sent a letter asking the BOP to once again place a detainer on Gilmore because it held warrants against him for assault and failure to pay child support. [Record No. 1-2 at 27] It appears that the BOP acknowledged the existence of this detainer in 2014. [Record No. 1-2 at 24]. Then, in March 2015, Gilmore wrote his own letter to a Judge in Richland County attempting to explain the situation and asking that his assault charge finally be resolved. [Record No. 1-2 at 1-2] A few months later, the BOP sent more correspondence to the Richland County Solicitor's Office indicating that Gilmore was requesting disposition on the outstanding assault and failure-to-pay-child-support charges. [Gilmore II - Record No. 1-1 at 1-6] Nevertheless, Gilmore claims that neither he nor the BOP ever received a response. [Record No. 1-2 at 29; Gilmore II - Record No. 1 at 2]

         Gilmore then requested an administrative remedy with the BOP, arguing that the state of South Carolina failed to remove him from federal custody to answer the pending charges against him within the 180-day time frame specified under the IADA. [Record No. 1-2 at 28-32] In response, the Warden noted that the BOP “did alert prosecuting officials of the 180-day lapse.” [Record No. 1-2 at 28] Similarly, the BOP's Mid-Atlantic Regional Director acknowledged that the BOP “sent correspondence to the Richland County, South Carolina, Solicitor and Richland County, South Carolina, Magistrate several times pointing out that you have applied for disposition of the charges against you. Bureau staff have indicated the time frames and have asked that the state take appropriate action. To date there has been no response from the state.” [Record No. 1-2 at 31]. Nevertheless, the BOP officials directed Gilmore to contact his attorney or state authorities in South Carolina, saying that only the state could authorize the removal of its detainer. [Record No. 1-2 at 28, 31]

         After pursuing his administrative remedies, Gilmore filed two federal habeas petitions with the United States District Court for the District of South Carolina: (1) the petition in this case, which alleges a violation of the IADA with respect to the assault charge, and (2) the petition in Gilmore II, which alleges a violation of the IADA with respect to the charge of failing to pay child support. [Record No. 1; Gilmore II - Record No. 1] However, because Gilmore was confined at a federal prison in the Eastern District of Kentucky when he filed each petition, the court transferred these matters to this district. [Record No. 15; Gilmore II - Record No. 9].

         Gilmore argues in his petitions that the state of South Carolina has violated the IADA and his speedy trial rights by not bringing him to trial or otherwise disposing of the charges against him. [Record No. 1; Gilmore II - Record No. 1] He complains that, because the state's charges and corresponding detainer remain pending, he has lost certain prison privileges and is unable to participate in specific programs, such as the BOP's Residential Drug Abuse Program (“RDAP”). [Record Nos. 26, 27, 34; Gilmore II - Record No. 14] Gilmore has submitted evidence from the BOP that supports this assertion. [Record No. 26 at 2 and No. 27-1; Gilmore II - Record No. 14-1] Ultimately, Gilmore asks the Court to remove the state's detainer. [Record Nos. 26, 27, 34; Gilmore II - Record No. 1 at 8-9 and No. 14 at 1] Gilmore also ...


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