UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

AUSTIN RAY, 

 Petitioner - Appellant, 

v. 

WARDEN DEBORAH DENHAM, 

 Respondent - Appellee. 

No. 15-1252 

(D.C. No. 1:15-CV-01012-LTB) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before BACHARACH, O’BRIEN, and PHILLIPS, Circuit Judges. 

_________________________________ 

Mr. Austin Ray appeals from the district court’s dismissal of his 

habeas application. We affirm. 

In April 2014, Mr. Ray was indicted in the District of Colorado and 

taken into federal custody. He sought dismissal of the criminal case, 

arguing that 

 

*

 The Court has determined that oral argument would not materially 

aid our consideration of the appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. 

R. 34.1(G). Thus, we have decided the appeal based on the briefs. 

 This order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But our order and judgment may be cited for its persuasive value under 

Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). 

FILED 

United States Court of Appeals

Tenth Circuit 

December 18, 2015

Elisabeth A. Shumaker 

Clerk of Court
2 

 federal authorities deprived him due process and violated the 

Interstate Agreement on Detainers by removing him from a 

Colorado pre-parole conditional supervision program and 

 the district court lacked personal jurisdiction over him. 

Mr. Ray also filed a habeas petition, making the same arguments. Because 

the same arguments were pending in the criminal case, the district court 

dismissed the habeas action. Mr. Ray appeals, and we affirm. 

In appropriate circumstances, federal courts can consider habeas 

applications filed by pre-trial detainees. See Walck v. Edmondson, 472 F.3d 

1227, 1235 (10th Cir. 2007) (considering a double jeopardy challenge). But 

“[a]n attempt to dismiss an indictment or otherwise prevent a prosecution 

is normally not attainable by way of pretrial habeas corpus.” Capps v. 

Sullivan, 13 F.3d 350, 354 (10th Cir. 1993) (alterations and internal 

quotation marks omitted). Even when habeas relief is otherwise available, 

the petitioner must first exhaust other available remedies. See, e.g., Dry v. 

CFR Court of Indian Offenses for the Choctaw Nation, 168 F.3d 1207, 

1209 (10th Cir. 1999) (tribal remedies); Capps, 13 F.3d at 353-54 & n.2 

(state remedies); Williams v. O’Brien, 792 F.2d 986, 987 (10th Cir. 1986) 

(per curiam) (administrative remedies). 

In unpublished opinions, we have sometimes applied the exhaustion 

rule to deny habeas relief to federal detainees who filed habeas 

applications while their federal criminal cases were pending. See 

Thompson v. Robinson, 565 F. App’x 738, 739 (10th Cir. 2014) 
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(unpublished); Hall v. Pratt, 97 F. App’x 246, 247-48 (10th Cir. 2004) 

(unpublished); Chandler v. Pratt, 96 F. App’x 661, 662 (10th Cir. 2004) 

(unpublished). We regard these opinions as persuasive because they follow 

logically from our precedents requiring exhaustion of other available 

remedies. Under these opinions, Mr. Ray had to exhaust his present claims 

by raising them in the criminal case. See Thompson, 565 F. App’x at 739; 

Hall, 97 F. App’x at 248; Chandler, 96 F. App’x at 662. 

The district court did not err in dismissing Mr. Ray’s habeas 

application. Thus, we affirm. Mr. Ray’s motion to proceed without 

prepayment of costs or fees is granted. 

 Entered for the Court 

 Robert E. Bacharach 

 Circuit Judge