Sandles v. Hemingway

John E. Sandies, a pro se federal prisoner, appeals from a district court order dismissing without prejudice his petition for a writ of habeas corpus. See 28 U.S.C. § 2241. Sandies moves for in forma pau-peris status. The government moves to dismiss the appeal or, in the alternative, for summary disposition without further briefing. Sandies also moves to voluntarily dismiss certain claims. The case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a). While a bank robbery charge against Sandies was pending in the district court, Sandies filed a petition for a writ of habeas corpus raising four claims concerning his speedy trial rights, his right to bail, and a defect in the indictment. The district court dismissed the petition without prejudice on the grounds that Sandies must exhaust his remedies at trial and on appeal concerning these claims before he can raise them in a habeas corpus proceeding. Upon consideration, we grant Sandles’s motion to voluntarily dismiss the speedy trial and bail claims. Concerning the indictment claim, we conclude that the district court properly dismissed the claim because it would be dispositive of the underlying criminal charges and must be exhausted at trial and on appeal before habeas corpus relief is available. Moore v. United States, 875 F.Supp. 620, 624 (D.Neb.1994), appeal dismissed, 54 F.3d 782 (8th Cir.1995) (unpub. dec.); see also Flowers v. Edwards, No. 85-1199, 780 F.2d 1020, 1985 WL 13977, at *1 (6th Cir. Nov.18, 1985) (unpub. dec.). The motion for in forma pauperis status is granted solely for the purpose of deciding this appeal, and the government’s motion to dismiss the appeal is denied. The motion to voluntarily dismiss certain claims is granted, and the order of the 558 district court is affirmed under Rule 340(2)(C), Rules of the Sixth Circuit.