* This order and judgment is not binding precedent, except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

MAY 14 2004

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

TIMOTHY CHANDLER,

Petitioner-Appellant,

v.

SAM PRATT, Warden,

Respondent-Appellee.

No. 03-1286

(D.C. No. 03-Z-922)

(D. Colo.)

ORDER AND JUDGMENT *

Before BRISCOE and McKAY , Circuit Judges, and BRORBY , Senior Circuit

Judge.

After examining petitioner’s 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); 10th Cir. R. 34.1(G). 

The case is therefore ordered submitted without oral argument.

While a pretrial detainee at the Federal Detention Center in Englewood,

Colorado, petitioner filed a pro se habeas petition under 28 U.S.C. § 2241
-2-

claiming his Fifth Amendment rights were being violated because 1) he had been

detained for over twenty-three months without a trial date having been set and

2) the superceding indictment was signed by David R. Haus as foreperson of the

grand jury, but an independent investigation revealed no record of anyone by that

name living in the state of Colorado. The district court dismissed the petition

without prejudice for failure to exhaust available remedies.

The court noted that if petitioner desired to challenge his pretrial detention,

he should do so by filing a motion in his criminal case under 18 U.S.C. § 3145,

and that if he wanted to challenge a violation of his speedy trial rights, he should

do so by filing a motion in his criminal case under 18 U.S.C. § 3162(a)(2). The

court further noted that petitioner’s counsel had, in fact, filed a motion in the

criminal case challenging petitioner’s pretrial detention and the alleged violation

of his speedy trial rights, and the motion was still pending. The district court

docket sheet for the criminal action also shows that petitioner’s counsel had filed

a motion seeking dismissal of the superceding indictment due to alleged grand

jury abuse. This motion also was still pending when the district court here

entered its order.
1 Because petitioner is a federal prisoner seeking relief under 28 U.S.C.

§ 2241, he does not have to obtain a certificate of appealability before he can

pursue an appeal. Hunnicutt v. Hawk , 229 F.3d 997, 998 (10th Cir. 2000)

(per curiam).

2

In addition to the appeal being frivolous when filed, we note that petitioner

has since entered into a plea agreement pursuant to which he has waived

indictment and has pled guilty to a new one-count information. He is scheduled

to be sentenced on May 11, 2004. Thus, it appears that all the claims he raised in

(continued...)

-3-

Petitioner now appeals 1

 and seeks leave to proceed on appeal in forma

pauperis . The district court denied petitioner’s request to proceed on appeal

in forma pauperis because it determined that this appeal was frivolous. We agree.

To be eligible for habeas corpus relief under § 2241, a federal pretrial

detainee usually must exhaust other available remedies. Cf. Fassler v. United

States , 858 F.2d 1016, 1018-19 (5th Cir. 1988) (per curiam) (holding defendants

cannot use § 2241 to challenge pretrial detention orders that can be challenged

under 18 U.S.C. § 3145); United States v. Pipito , 861 F.2d 1006, 1009 (7th Cir.

1987) (same). Here, all the claims petitioner attempted to raise in his § 2241

petition should have been, and apparently were being, pursued in the criminal

action. To allow petitioner to bring the same claims before another judge in

a collateral proceeding would not only waste judicial resources, but would

encourage judge shopping. The district court properly dismissed petitioner’s

claims without prejudice for failure to exhaust, and there was no arguable basis

in law or fact for appealing that decision. 2
2

(...continued)

his § 2241 petition either are moot or have been waived.

-4-

We therefore DENY petitioner’s request to proceed in forma pauperis

on appeal, and we DISMISS the appeal as frivolous.

Entered for the Court

Wade Brorby

Senior Circuit Judge