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    1) Scott Crowley, who was incarcerated in Utah for attempted robbery but escaped to Kansas and committed a federal crime, filed a habeas corpus petition seeking dismissal of a Utah detainer and concurrent sentencing of his state and federal sentences. 2) The district court dismissed the petition. The appellate court affirmed, finding that Crowley failed to name his federal custodian as a respondent, as required, and that the Interstate Agreement on Detainers Act did not apply because Utah filed the detainer only to ensure Crowley served his remaining Utah sentence after his federal sentence. 3) The appellate court concluded it had no authority to modify Crowley's state sentence to run concurrently with his federal sentence, as

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    Filed: 1999-02-16 Precedential Status: Non-Precedential Docket: 98-3293

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    1) Scott Crowley, who was incarcerated in Utah for attempted robbery but escaped to Kansas and committed a federal crime, filed a habeas corpus petition seeking dismissal of a Utah detainer and concurrent sentencing of his state and federal sentences. 2) The district court dismissed the petition. The appellate court affirmed, finding that Crowley failed to name his federal custodian as a respondent, as required, and that the Interstate Agreement on Detainers Act did not apply because Utah filed the detainer only to ensure Crowley served his remaining Utah sentence after his federal sentence. 3) The appellate court concluded it had no authority to modify Crowley's state sentence to run concurrently with his federal sentence, as

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    Crowley v. Graham, 10th Cir. (1999)

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    1) Scott Crowley, who was incarcerated in Utah for attempted robbery but escaped to Kansas and committed a federal crime, filed a habeas corpus petition seeking dismissal of a Utah detainer and concurrent sentencing of his state and federal sentences. 2) The district court dismissed the petition. The appellate court affirmed, finding that Crowley failed to name his federal custodian as a respondent, as required, and that the Interstate Agreement on Detainers Act did not apply because Utah filed the detainer only to ensure Crowley served his remaining Utah sentence after his federal sentence. 3) The appellate court concluded it had no authority to modify Crowley's state sentence to run concurrently with his federal sentence, as

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    of 4

    F I L E D

    UNITED STATES COURT OF APPEALS


    TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    FEB 16 1999

    PATRICK FISHER
    Clerk

    SCOTT M. CROWLEY,
    Petitioner-Appellant,

    v.

    JAN GRAHAM; and NEAL


    GUNNERSON, Salt Lake County
    District Attorney,

    No. 98-3293
    (D.C. No. 98-CV-3228)
    (D. Kan.)

    Respondents-Appellees.
    ORDER AND JUDGMENT *
    Before BRORBY, EBEL and LUCERO, Circuit Judges.

    Petitioner-Appellant Scott M. Crowley (Crowley) was incarcerated in the


    Utah State Prison for committing attempted robbery. Before completing his
    sentence, Crowley escaped, fled to Kansas, committed a federal crime, and was
    sentenced to the federal penitentiary. Utah filed a detainer against Crowley at the
    After examining appellants brief and the appellate record, this panel has
    determined unanimously that oral argument would not materially assist the
    determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
    34.1(G). The case is therefore ordered submitted without oral argument. This
    Order and Judgment is not binding precedent, except under the doctrines of law of
    the case, res judicata, and collateral estoppel. The court generally disfavors the
    citation of orders and judgments; nevertheless, an order and judgment may be
    cited under the terms and conditions of 10th Cir. R. 36.3.
    *

    federal penitentiary in Kansas, to secure Crowleys return to Utah at the


    conclusion of his federal sentence in order to complete his Utah sentence.
    Crowley requested a prompt disposition of the charges in the detainer, pursuant to
    the Interstate Agreement on Detainers Act (IADA). Utah responded by arguing
    that no prompt disposition was necessary because it would dismiss the pending
    charges of escape and that it had filed the detainer only to ensure that Crowley
    served his outstanding Utah prison term.
    Crowley filed a petition for writ of habeas corpus under 28 U.S.C. 2241,
    seeking dismissal of the detainer and an order that his remaining Utah sentence
    run concurrently with his federal sentence. The district court granted Crowley
    leave to file the petition in forma pauperis, but dismissed the petition. We grant
    Crowley leave to proceed on appeal in forma pauperis and affirm.
    The petition, on its face, raises a jurisdictional issue which we must
    examine sua sponte. See Phelps v. Hamilton, 122 F.3d 1309, 1315-16 (10th Cir.
    1997). Crowley is in federal prison, in custody of the warden of USPLeavenworth, Kansas, but Crowley names as respondents two state officials of
    Utah. The habeas statute requires that a 2241 petitioner state the name of the
    person who has custody over him. 28 U.S.C. 2242; see also Braden v. 30th
    Judicial Circuit Ct. of Ky., 410 U.S. 484, 494-95 (1973) (The writ of habeas
    corpus does not act upon the prisoner who seeks relief, but upon the person who
    -2-

    holds him in what is alleged to be unlawful custody.). Failure to do so is fatal to


    the petition. See Harris v. Champion, 51 F.3d 901, 906 (10th Cir. 1995)
    (dismissing habeas claim against Oklahoma Court of Criminal Appeals and the
    individual judges thereof because neither were the prisoners custodian). Because
    neither Respondent Jan Graham, the Utah State Attorney General, nor Respondent
    Neal Gunnerson, Salt Lake District Attorney, were Crowleys custodians, they are
    not proper parties to a habeas action. Crowley has failed to name his warden as a
    respondent. Moreover, Crowley has failed to name an official with power to
    release him from custody under his federal sentence if the court were to rule in
    his favor. Accordingly, Crowleys 2241 petition is jurisdictionally defective
    and the district court erred by reaching the merits. 1
    We note, in any event, that IADA does not appear to be of any help to
    Crowley in this case. Article III of the [IADA] gives a prisoner incarcerated in
    one State the right to demand the speedy disposition of < any untried indictment,
    information or complaint that is the basis of a detainer lodged against him by
    another State. Carchman v. Nash, 473 U.S. 716, 718 (1985). In Carchman, the
    Supreme Court held that a probation-revocation detainer does not qualify under
    the terms of Article III of the IADA because such a detainer is not based on any
    untried indictment, information or complaint. The Court pointed out that
    IADAs use of indictment, information or complaint refers to documents
    charging an individual with having committed a criminal offense, and that the
    adjective untried refers to matters that can be brought to full trial. Id. at 724.
    A prisoner subject to a probation-violation charge would not be brought to full
    trial for violating probation. Instead, the Supreme Court explained,
    1

    the probation-violation charge results in a probation-revocation hearing, a


    proceeding to determine whether the conditions of probation should be
    (continued...)
    -3-

    Crowley also asks this court to order the remaining time on his state
    sentence to run concurrently with his federal sentence. However, the question of
    whether a prisoner should receive credit against his state sentence for time served
    for a federal sentence in a federal institution is a question of state law that should
    first be raised with the Utah courts. Accordingly, this court has no authority to
    modify Crowleys state sentence retroactively to make it run concurrently with his
    federal sentence.
    We AFFIRM the dismissal of Crowleys petition. The mandate shall issue
    forthwith.

    ENTERED FOR THE COURT


    David M. Ebel
    Circuit Judge

    (...continued)
    modified or the probationer should be resentenced, at which the probationer
    is entitled to less than the full panoply of due process rights accorded a
    defendant at a criminal trial.
    Id. at 725-26.
    1

    Given this reasoning, we find it obvious that the IADA does not apply to
    the detainer at issue here. Utah filed the detainer to ensure that Crowley finish
    serving the state sentence he cut-short by escaping from prison. Crowley would
    not be brought to full trial for failing to complete his sentence because,
    importantly, Utah dropped the untried criminal charges of escape. Since the
    IADA applies only to untried criminal charges, see McDonald v. New Mexico
    Parole Bd., 955 F.2d 631, 633 (10th Cir. 1991), the IADA does not apply to the
    detainer filed against Crowley. Thus, Crowleys request that we dismiss the
    detainer has no merit.
    -4-

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