* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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 appellat e record, this panel has determined unanimously that oral argument would notmaterially 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 ora l argument. While a pretrial detainee at the Federal Detention Center in Englewood, Colorado, petitioner filed a pro se habeas petitionunder 28 U.S.C. § 2241-2-

claiming his Fifth Amendment rights were being viol ated because 1) he had been detained for over twenty-three months without a tri al 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 reveal ed no record of anyone by that name living in the state of Colorado. The districtcourt dismissed the petition without prejudice for failure to exhaust available remedies. The court noted that if petitioner desired to chall enge 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 h is speedy trial rights, he should do so by filing a motion in his criminal case under18 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 det ention and the alleged violation of his speedy trial rights, and the motion was stil l 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 whe n the district court here entered its order.1 Because petitioner is a federal prisoner seeking re lief 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 file d, 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 i nformation. 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 t o proceed on appeal in forma pauperis because it determined that this appeal was frivolo us. We agree. To be eligible for habeas corpus relief under § 224 1, 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 o rders 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 atte mpted to raise in his § 2241 petition should have been, and apparently were bein g, pursued in the criminal action. To allow petitioner to bring the same clai ms before another judge in a collateral proceeding would not only waste judici al resources, but would encourage judge shopping. The district court prope rly dismissed petitioner’s claims without prejudice for failure to exhaust, an d there was no arguable basis in law or fact for appealing that decision. 22 (...continued)

his § 2241 petition either are moot or have been wa ived. -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