887 F.2d 778 (7th Cir. 1989), 87-3036, Flick v. Blevins

Docket Nº:87-3036.
Citation:887 F.2d 778
Party Name:John J. FLICK, Jr., Petitioner-Appellant, v. Dudley BLEVINS, Warden, Respondent-Appellee.
Case Date:October 12, 1989
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 778

887 F.2d 778 (7th Cir. 1989)

John J. FLICK, Jr., Petitioner-Appellant,

v.

Dudley BLEVINS, Warden, Respondent-Appellee.

No. 87-3036.

United States Court of Appeals, Seventh Circuit

October 12, 1989

        Argued April 25, 1989.

        Rehearing and Rehearing In Banc Denied Dec. 26, 1989.

Page 779

        Howard B. Eisenberg, Southern Illinois University School of Law, Carbondale, Ill., for John J. Flick, Jr., petitioner-appellant.

        John J. Flick, Jr., pro se.

        Gerald A. Coraz, Asst. U.S. Atty. and Bradley L. Williams, U.S. Atty., Office of the U.S. Atty., Indianapolis, Ind., for Dudley Blevins, respondent-appellee.

        Before WOOD, Jr., CUDAHY and EASTERBROOK, Circuit Judges.

        PER CURIAM.

        Petitioner John J. Flick, Jr. ("Flick"), appeals the district court's dismissal sua sponte, as frivolous, his 28 U.S.C. Sec. 2241 petition for a writ of habeas corpus and motion to proceed in forma pauperis. For the reasons stated below, we affirm.

       I.

        On March 14, 1986, the United States District Court for the Western District of Pennsylvania issued a writ of habeas corpus ad prosequendum 1 to federal authorities so that they could take Flick into custody, and try him on federal charges which were pending before that court. 2 At the time, Flick was confined in the State Correctional Institution, Pittsburgh, Pennsylvania, serving a Pennsylvania state sentence and awaiting a parole hearing. 3 Pursuant to the writ, federal authorities took Flick into custody on March 21, 1986, and he was later tried and convicted in federal district court; he was sentenced on May 28, 1986 to serve seven years in a federal penitentiary. The ad prosequendum writ required Flick's return to state custody upon completion of the federal criminal trial, but on May 30, 1986, federal authorities in error transported Flick to the United States Penitentiary at Terre Haute, Indiana.

        On July 24, 1986, nearly two months after Flick arrived at the Terre Haute facility, the Commonwealth of Pennsylvania filed a parole violation warrant with the penitentiary, requesting in a separate letter that the federal authorities inform the Commonwealth as to the expected date for Flick's "release or parole." The Pennsylvania Board of Probation and Parole ("Pennsylvania Parole Board") considered that Flick violated the terms of his parole by virtue of his federal conviction. After receiving this letter, the Federal Bureau of Prisons determined that "due to an administrative error" Flick had been transported to Terre Haute without return to state custody as required by the ad prosequendum writ. Therefore, on September 5, 1986, federal authorities transferred Flick to the custody of the Pennsylvania Parole Board. Flick received credit on his federal sentence for the time spent in federal custody from May 28, 1986 until September 5, 1986, the date he was returned to state custody. Flick completed serving his state sentence on September 30, 1986, and on that date, federal authorities again took Flick into custody. They returned him to the Terre Haute facility where he is presently incarcerated.

       II.

        On November 4, 1987 Flick filed this petition for a writ of habeas corpus pursuant

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to 28 U.S.C. Sec. 2241 in the district court for the Southern District of Indiana. In his pro se petition, Flick contended that his continued incarceration in the federal penetentiary was illegal because the federal authorities released him to the Pennsylvania state authorities after he began serving his federal sentence. Flick claimed this meant that the Federal Bureau of Prisons had relinquished all jurisdiction over him. Flick, also claiming pauper status, filed a motion to proceed in forma pauperis.

        The district court considered the petition and motion without requesting that the defendants respond. The district court sua sponte held that Flick's motion was frivolous under 28 U.S.C. Sec. 1915(d); the court reasoned that a prisoner subject to imprisonment by two sovereigns cannot complain about the order in which his sentences are served. Citing this court's opinion to that effect, Jeter v. Keohane, 739 F.2d 257, 258 (7th Cir.1984), the court denied both the motion to proceed in forma pauperis and the petition for the writ. Flick timely appealed, but the district court denied leave to appeal. Flick then paid the filing fees, and this court appointed counsel.

       III.

        On appeal, Flick argues that the district court abused its discretion by sua sponte denying his motion to proceed in forma pauperis and dismissing his petition for a writ of habeas corpus. Flick claims that the sua sponte dismissal of a pro se indigent's claims is only proper in extreme cases, and furthermore, that dismissal in such a case, prior to a responsive pleading, is a denial of equal protection.

        Flick also argues that his petition is not frivolous. Flick...

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