United States District Court, D. South Carolina, Greenville Division
REPORT OF MAGISTRATE JUDGE
F. McDonald United States Magistrate Judge.
matter is before the court upon the motion of petitioner
David Mussehl, represented by counsel, for a temporary
restraining order ("TRO") (doc. 2). Pursuant to the
provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil
Rule 73.02(B)(2)(c) (D.S.C.), all pretrial matters in cases
involving certain challenges to custody are referred to a
United States Magistrate Judge for consideration.
petitioner is challenging a purported extradition order (doc.
2). He states that he is currently in custody at the
Charleston County Detention Center and is set to be
extradited to Orange County, California at 5:00 a.m. on
Monday, December 11, 2018 (id. at 2). He contends he
was arrested on November 17, 2017, in Mount Pleasant, South
Carolina, for failing to appear for a scheduled appearance in
California (id.). He asserts that he was held at the
Detention Center for three days without an opportunity to
have a bond set in violation of law (id.). He
alleges that he unknowingly signed a document waiving
extradition; he asserts it was unknowing because he cannot
read without glasses or contacts and had neither, his mental
faculties were impaired by medications for cancer and crones
disease, and he was denied his right to legal counsel
regarding the waiver of extradition (id.).
petitioner alleges that California is not following the
proper procedures to have him extradited (id.). He
contends the State of South Carolina has violated S.C. Code
Ann. § 17-9-10 by holding him beyond 20 days
(id. at 2-3). The petitioner asserts that his
counsel has attempted to resolve this issue through the state
courts beginning December 5, 2017 (id. at 3). He
further asserts that he requires treatment for medical
conditions and that transport to California will interfere
with this treatment (id.).
petitioner seeks a TRO staying extradition; an order to quash
the waiver of extradition; and immediate release or; in the
alternative, an emergency hearing to address the terms of his
release (id. at 5).
LAW AND ANALYSIS
federal habeas corpus relief for a state prisoner is
available postconviction. However, pretrial petitions for
habeas corpus are properly brought under 28 U.S.C. §
2241, "'which applies to persons in custody
regardless of whether final judgment has been rendered and
regardless of the present status of the case pending against
him.'" United States v. Tootle, 65 F.3d
381, 383 (4th Cir. 1995) (quoting Dickerson v.
Louisiana, 816 F.2d 220, 224 (5th Cir. 1987)). Generally
though, "'an attempt to dismiss an indictment or
otherwise prevent a prosecution'" is not attainable
through federal habeas corpus. Dickerson, 816 F.2d
at 226 (quoting Brown v. Estelle, 530 F.2d 1280 (5th
Cir. 1976)). A federal writ of habeas corpus under 28 U.S.C.
§ 2241 can only be sought a/ferthe petitioner has
exhausted his state remedies. Exhaustion is statutorily
required by 28 U.S.C. § 2254; whereas, when a petition
for writ of habeas corpus is brought by a state prisoner
pursuant to 28 U.S.C. § 2241, the exhaustion of state
remedies is a judicially created requirement. See Braden
v. 30th Judicial Circuit Court, 410 U.S. 484, 490-91
(1973) (exhaustion required under 28 U.S.C. § 2241);
Moore v. DeYoung, 515 F.2d 437, 442-43 (3rd Cir.
1975) (exhaustion required under 28 U.S.C. §2241).
is a drastic remedy that serves an exceedingly narrow
purpose. It exists only to preserve the status quo
until a preliminary injunction hearing can be held.
Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174
F.3d 411, 422 (4th Cir. 1999) (citing Granny Goose Foods,
Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No.
70 of Alameda Cty., 415 U.S. 423, 439 (1974)). The
standard for granting a request for a TRO and entering a
preliminary injunction are identical. See, e.g.,
Sauer-Danfoss (US) Co. v. Nianzhu Luo, C.A. No.
8:12-3435-HMH, 2012 WL 6042831, at *1 (D.S.C. Dec. 5, 2012)
(citing Commonwealth of Virginia v. Kelly, 29 F.3d
145, 147 (4th Cir. 1994) (applying preliminary injunction
standard to a request for TRO)). In order for such injunctive
relief to be granted, the movant must establish that "he
is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief,
that the balance of the equities tips in his favor, and that
an injunction is in the public interest." Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). All
four requirements must be satisfied. Real Truth About
Obama, Inc., v. Fed. Election Comm'n, 575 F.3d 342,
346 (4th Cir. 2009), vacated on other grounds, 559
U.S. 1089 (2010), reinstated in relevant part on
remand, 607 F.3d 355 (4th Cir. 2010).
first Winter factor is dispositive here, as the
petitioner has not demonstrated that he is likely to succeed
on the merits. The petitioner, through counsel, has provided
no evidence in support of any of his claims. The petitioner
fails to provide any documentation regarding his current
incarceration, his pending charges in California, any
directive from California, or any other claim he puts forward
in this motion. In light of the fact that a TRO is a drastic
remedy that serves an exceedingly narrow purpose, the
petitioner's conclusory allegations without support have
not established that he is likely to succeed on the merits.