United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
Michael Nebel, Jr. (“movant”) brings a motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. ECF No. 642. For the reasons set forth
below, the motion should be denied pursuant to Rule 4 of the
Rules Governing Section 2255 Proceedings in the District
of the Rules Governing § 2255 Proceedings for the U.S.
District Courts requires that the court perform a preliminary
review of any motion brought under § 2255. “If it
plainly appears from the motion, any attached exhibits, and
the record of prior proceedings that the moving party is not
entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within
a fixed time, or to take other action the judge may
order.” Rule 4, Rules Governing § 2255
Pro Se Filings
initial matter, movant has brought this motion pro se. The
docket reflects, however, that counsel Mia Crager is still
representing him. A litigant represented by counsel is not
entitled to file documents with the court on their own
behalf. See, e.g., Meador v. Hammer, No.
2:11-cv-3342 KJM AC P, 2015 U.S. Dist. LEXIS 32062, 2015 WL
1238363, at *2 (E.D. Cal. Mar. 16, 2015) (“[P]laintiff
has previously been warned that pro se filings will be
disregarded so long as he is represented by counsel. . . .
For these reasons, the court will disregard plaintiff's
pro se filing.”); Reiffin v. Microsoft Corp.,
No. C 98-0266 WHA, 2011 U.S. Dist. LEXIS 62164, 2011 WL
2359059, at *1 (N.D. Cal. June 10, 2011) (“[P]laintiff
. . . himself-despite being represented by counsel-made a
series of ‘pro se' filings in the district court.
These filings, which have since been stricken as improper . .
. .”). If a claimant wishes to proceed with claims on a
pro se basis, he and/or his counsel must comply with Local
Rule 182 to obtain an order for his substitution in place of
his counsel. He has not done so and at present cannot file
documents on his own behalf.
motion is also without merit. Movant claims that, after
charges were brought against him in state court, a federal
detainer was filed against him on July 9, 2016. ECF No. 642
at 5. He states that, on July 3, 2018, the detainer was
cancelled. Id. Then, on October 3, 2018, the
detainer was refiled. Id. Now, movant argues that he
has been denied a “speedy resolution and disposition of
this matter . . . .” Id.
movant indicates that the detainer was lodged against him
while he was on supervised release, and he attributes the
re-filing of the detainer in October to the assignment of a
new “supervised release agent.” See Id.
(“Between July and October 2018, the assigned
supervised release agent . . . to petitioner was
changed.”). The Speedy Trial Clause does not apply to
revocation cases. See United States v. Santana, 526
F.3d 1257, 1259 (9th Cir. 2008); see also United States
v. Gavilanes-Ocaranza, 772 F.3d 624, 628 (9th Cir. 2014)
(“There is no Sixth Amendment right to a speedy trial
in supervised release revocation proceedings, because those
proceedings are not part of a criminal prosecution and thus
the ‘full panoply of rights due a defendant in such a
proceeding does not apply.'”).
extent movant claims that the federal detainer represents a
more general violation of his due process, he has failed to
allege that he has suffered any prejudice from the
cancellation and re-filing of the detainer. See United
States v. Contreras, 63 F.3d 852, 855 (9th Cir. 1995)
(in reviewing pre-indictment delay claim, claimant must
demonstrate that “actual prejudice” occurred from
to the extent movant seeks to raise a claim under Interstate
Agreement on Detainers Act (“IADA”), that claim fails.
Under Article III of the IADA, a prisoner in one jurisdiction
may demand the speedy disposition of any untried
“indictment, information, or complaint” that
underlies a detainer brought against him in a separate
jurisdiction. 18 U.S.C. App. 2, § 2, Art. III(a). The
Supreme Court has held, however, that charges based on
probation-violations “[do] not come within the terms of
Article III.” Carchman v. Nash, 473 U.S. 716,
725 (1985). And various district courts have interpreted
Carchman to apply to violations of supervised
release. See United States v. Ruiz-Avarez, 2010 U.S.
Dist. LEXIS 78797, 2010 WL 3063919, at *1 (D. Or. Aug. 3,
2010) (collecting cases).
on the foregoing, it is hereby RECOMMENDED that
1. Movant's motion to vacate, set aside, or correct
sentence (ECF No. 642) be DISMISSED pursuant to Rule 4 of the
Rules Governing Section 2255 ...