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Gilmore v. Ebbert

United States Court of Appeals, Sixth Circuit

July 17, 2018

Tyganda Gilmore, Petitioner-Appellant,
v.
David J. Ebbert, Warden, Respondent-Appellee.

          Appeal from the United States District Court for the Eastern District of Kentucky at London. No. 6:16-cv-00189-Danny C. Reeves, District Judge.

          Tyganda Gilmore, Lewisburg, Pennsylvania, pro se.

          Before: SUTTON, McKEAGUE, and KETHLEDGE, Circuit Judges.

         LITIGANT

          OPINION

          SUTTON, CIRCUIT JUDGE.

         Tyganda Gilmore wants closure. While Gilmore was serving a sentence in federal prison, South Carolina told him that it planned to charge him with unrelated state-law offenses. He responded by asking state officials to coordinate with the Federal Bureau of Prisons to resolve the outstanding charges. But they never replied. Gilmore filed a habeas petition in federal court asking the court to dismiss the state charges because South Carolina violated the Interstate Agreement on Detainers Act. The district court refused. We affirm on the ground that he named the wrong official.

         I.

         In 2006, Gilmore pleaded guilty to federal drug offenses and began serving a 188-month sentence. South Carolina had planned to charge Gilmore with assault and battery and failure to pay child support. But the federal government indicted him first. Because he was already in federal custody, the State filed a detainer-a request from one jurisdiction (South Carolina) asking another (the Federal Bureau of Prisons) to notify it before releasing a prisoner-for the assault and battery charges. That way South Carolina could prosecute Gilmore when he was released.

         The Bureau told Gilmore about the state charges and explained his rights under the Interstate Agreement on Detainers Act. If he asked South Carolina to resolve the charges underlying the detainer, the State would need to try him within 180 days. See 18 U.S.C. app. 2, § 2, art. III(a). Failure of the State to do so would result in dismissal of the charges and void the detainer. Id. art. V(c). Gilmore told prison officials that he wanted to exercise his rights under the Act. The Bureau did its part to help. On October 12, 2006, it notified the Solicitor of Richland County, South Carolina that Gilmore had requested final disposition of the charges. It later offered to deliver Gilmore to South Carolina for temporary custody. The Bureau followed up on its earlier correspondence.

         In January 2007, the Solicitor's Office replied that it "ha[d] no charges pending" against Gilmore. R. 1-2 at 14. It could only speculate that any charges originated in the Richland County Sheriff's Department. The Bureau informed the State that it "was this office's intention that your office would forward the paperwork to the appropriate Court" but volunteered to take on the task. Id. at 15. On January 26, 2007, it forwarded Gilmore's request to Richland County's Magistrate Court. No one responded-not the Solicitor, not the Sheriff, not the County Court.

         Four years later, South Carolina sent another detainer request to the Bureau, this time with the charge that Gilmore had failed to pay child support. Gilmore took matters into his own hands. In 2015, he wrote the South Carolina Magistrate Judge assigned to his case. "I have been attempting to resolve the outstanding issues" for almost ten years, he said, adding that the detainers made it difficult for him to "complete numerous rehabilitative programs." Id. at 1. No one responded.

         Gilmore filed two habeas petitions in the U.S. District Court for the District of South Carolina alleging that South Carolina violated the Interstate Agreement on Detainers Act. That court concluded that it lacked personal jurisdiction over Gilmore's federal custodian, Big Sandy Warden Gregory Kizziah, in Inez, Kentucky. It transferred both petitions to the Eastern District of Kentucky. That court, in turn, dismissed both petitions for failure to exhaust. On appeal, Gilmore pursues only his petition relating to the assault and battery detainer.

         II.

         The Interstate Agreement on Detainers Act did not start out as an act. It began as an agreement between States. In the 1950s, the Council on State Governments proposed an interstate agreement to hasten the resolution of lingering criminal detainers. United States v. Mauro, 436 U.S. 340, 349-51 (1978). Before long, twenty-two States had signed the agreement. Agreement on Detainers, Nat'l Ctr. for Interstate Compacts. That approach implicated the Compact Clause, which provides that "No State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State." U.S. Const. art. I, ยง 10, cl. 3. In 1970, Congress "enacted" the ...


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