                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 6, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                           FOR THE TENTH CIRCUIT


    JEROME VICTOR TRAFNY,

               Plaintiff-Appellant,

    v.                                                 No. 07-4217
                                                (D.C. No. 2:06-CV-578-TC)
    UNITED STATES OF AMERICA;                            (D. Utah)
    UNITED STATES MARSHAL
    SERVICE; RANDALL ANDERSON,
    United States Marshal; WAYNE
    DANCE, United States Attorney
    General; CARLOS A. ESQUEDA,
    Assistant United States Attorney;
    MICHAEL SIBBETT, Chairman,
    State of Utah Board of Pardons;
    SCOTT CARVER, Executive Director,
    Utah Department of Corrections;
    MARK L SHURTLEFF, Attorney
    General of the State of Utah; SHAREL
    S. REBER, Assistant Attorney General
    of the State of Utah,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially 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 oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Before BALDOCK, BRORBY, and EBEL, Circuit Judges.



      Petitioner-Appellant Jerome Victor Trafny appeals from an order of the

district court dismissing his pro se civil rights complaint. The district court

determined that one of his claims was frivolous, see 28 U.S.C. § 1915(e)(2)(B)(i),

and that the remaining claims failed to state a claim, see id. § 1915(e)(2)(B)(ii).

We affirm the order of dismissal.

                                 BACKGROUND

      In 1988, Mr. Trafny was convicted in the Utah state courts of one count of

rape and was sentenced to a prison term of five years to life. On February 18,

2004, while he was serving his state sentence, a federal grand jury returned an

indictment against him for bank robbery. A detainer was lodged against him, and

a writ of habeas corpus ad prosequendum was issued on February 20.

      On March 1, Mr. Trafny was taken into custody by the United States

Marshals and appeared before a federal judge to answer the bank robbery charge.

He pleaded guilty on April 5 and was sentenced on July 8 to 151 months’

imprisonment (later reduced to 63 months). He was then returned to state prison

on July 9, 2004.

      On October 5, 2004, the Utah Board of Pardons and Parole granted

Mr. Trafny parole on his state sentence and transferred him to the custody of the

United States Bureau of Prisons to begin serving his federal sentence. The Utah

                                         -2-
Attorney General’s Office notified him that the time he spent in federal custody

would not count toward his Utah state sentence, and that following the expiration

of his federal sentence he would serve a probationary period remaining on his

state sentence. He subsequently filed this civil rights action, asserting that the

defendants had deprived him of due process by failing to grant him a hearing

before he was transferred to federal custody and by failing to inform him of his

right to petition the Governor of Utah to disapprove the United States’ request for

custody. He further argued that his federal and state sentences should be vacated

because the alleged unlawfulness of the transfers had rendered the sentences

invalid. The district court determined that his claim concerning a pre-transfer

hearing was frivolous, and that his remaining claims failed to state a claim for

relief.

                                      ANALYSIS

          The district court disposed of this case under 28 U.S.C. § 1915(e)(2), which

provides that the court shall dismiss a proceeding filed in forma pauperis at any

time “if the court determines that . . . (B) the action or appeal--(i) is frivolous or

malicious [or] (ii) fails to state a claim on which relief may be granted[.]” We

review de novo the district court’s dismissal of an in forma pauperis complaint

under § 1915(e)(2)(B)(ii) for failure to state a claim. See Kay v. Bemis, 500 F.3d

1214, 1217 (10th Cir. 2007). We generally review the district court’s decision to

dismiss claims as frivolous under § 1915(e)(2)(B)(i) for an abuse of discretion.

                                           -3-
See Conkle v. Potter, 352 F.3d 1333, 1335 n.4 (10th Cir. 2003). If the dismissal

turns on a question of law, however, we will review that determination de novo.

See Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006).

      On appeal, Mr. Trafny raises three issues: (1) whether the Interstate

Agreement on Detainers (IAD), 18 U.S.C. App. 2, §§ 1-9, entitled him to exercise

his “pre-existing rights” to challenge his transfer to federal custody, including

obtaining a pre-transfer hearing under Utah’s version of the Uniform Criminal

Extradition Act; (2) whether the defendants deprived him of due process by

failing to inform him of his alleged right under the IAD to petition the Utah State

Governor to disapprove the United States’ request for custody; and (3) whether

the State of Utah was required to terminate his state sentence before surrendering

custody to the United States, such that the remainder of his state sentence should

therefore be dismissed.

      1. Pre-Transfer Hearing

      Mr. Trafny contends that the defendants deprived him of his right under

Utah state law to a pre-transfer hearing before he was taken into federal custody

on a writ of habeas corpus ad prosequendum and subjected to federal proceedings.

Under Utah’s version of the Uniform Criminal Extradition Act (UCEA), a person

subject to extradition to another jurisdiction

      shall first be taken forthwith before a judge of a court of record in
      this state who shall inform him of the demand made for his surrender
      and of the crime with which he is charged and that he has the right to

                                         -4-
      demand and procure legal counsel and if the prisoner or his counsel
      shall state that he or they desire to test the legality of his arrest, the
      judge of such court of record shall fix a reasonable time to be
      allowed him within which to apply for a writ of habeas corpus.

Utah Code Ann. § 77-30-10.

      This statute creates no right, however, where the receiving jurisdiction is

the United States. The definitions section of Utah’s UCEA provides that “[t]he

term ‘state,’ referring to a state other than this state, includes any other state or

territory, organized or unorganized, of the United States of America.” Id.

§ 77-30-1 (emphasis added). Thus, unlike the IAD, which includes the United

States within its definition of a “state,” the protections of Utah’s UCEA only

apply to transfers between actual states of the Union. Mr. Trafny cites no

authority to the contrary. 1

      2. Right to Petition Utah Governor

      Mr. Trafny contends that the defendants denied him due process and

violated the IAD by failing to inform him of his right to a thirty-day period before

transportation to permit him to petition Utah’s governor to disapprove the United

States’ writ. Article IV(a) of the IAD provides that once the request for custody

has been transmitted,




1
      The district court found this issue to be frivolous. While we do not
necessarily agree with this characterization, we do agree that it fails to state a
claim on which relief may be granted. Fed. R. Civ. P. 12(b)(6).

                                           -5-
      there shall be a period of thirty days after receipt by the appropriate
      authorities before the request be honored, within which period the
      Governor of the sending State may disapprove the request for
      temporary custody or availability, either on his own motion or upon
      motion of the prisoner.

18 U.S.C. App. 2, § 2, Art. IV(a).

      It is clear that when a court issues a writ of habeas corpus

ad prosequendum after a federal prosecutor has lodged a detainer with a

“sending” state, the writ is treated as a request for custody under the IAD. United

States v. Mauro, 436 U.S. 340, 361-62 (1978). The question is whether such a

federal writ also triggers the thirty-day waiting period for the potential exercise of

the gubernatorial veto power. We hold that it does not.

      The passage of Article IV(a) of the IAD did not expand the authority of a

sending state to dishonor an ad prosequendum writ issued by a federal court. Id.

at 363. States have never had such authority. The Supremacy Clause states that

the laws of the United States “shall be the supreme Law of the Land; and the

Judges in every State shall be bound thereby.” United States Const., Art. VI, cl.

2. The pertinent United States law here is the federal habeas statute, which

provides that federal habeas jurisdiction is available when “[i]t is necessary to

bring [a prisoner] into [federal] court to testify or for trial.” 28 U.S.C.

§ 2241(c)(5); see United States v. Kenaan, 557 F.2d 912, 916 n.8 (1st Cir. 1977)

(stating “[i]t appears that no state has ever refused to honor the writ” when

prisoner’s presence was sought under § 2241(c)(5)); see also United States v.

                                          -6-
Graham, 622 F.2d 57, 59 (3d Cir. 1980) (“[I]n enacting Article IV(a), Congress

did not intend to confer on state governors the power to disobey writs issued by

federal courts as ‘written requests for custody’ under the [I.A.D.]”); United States

v. Bryant, 612 F.2d 799, 802 (4th Cir. 1979) (“While an individual state has

authority to disapprove another state’s request for custody, it does not have

authority and is not empowered by the [I.A.D.] to reject a federal writ of habeas

corpus ad prosequendum that serves as such a request.”). Mr. Trafny had no right

to petition Utah’s governor to reject the writ and hence no entitlement to a

thirty-day period before transportation.

      3. Imposition of Remainder of State Sentence

      Mr. Trafny argues that the state of Utah could only surrender him to federal

custody if it waived or terminated the remainder of his probationary term before

turning him over to federal authorities. The district court rejected this claim

because it attacked the execution of Mr. Trafny’s sentence and could therefore not

be brought as a § 1983 claim unless that sentence had previously been invalidated

in a habeas proceeding. This is entirely correct. See, e.g., Heck v. Humphrey,

512 U.S. 477, 486-87 (1994).




                                           -7-
                                  CONCLUSION

      The order of the district court dismissing Mr. Trafny’s complaint is

AFFIRMED. 2 We grant his motion to proceed in forma pauperis, and remind him

that he is obligated to continue making partial payments until the entire fee has

been paid. Finally, we deny his “Motion for Order to Show Cause Why Criminal

Case Should Not be Dismissed.”


                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




2
       We note that Mr. Trafny is no stranger to this court, having pursued a
number of unsuccessful appeals, including two successive 28 U.S.C. § 2255
motions. Since we uphold the district court’s order dismissing his civil rights
complaint for failure to state a claim, the district court’s dismissal counts as a
“strike” for purposes of the “three strikes” provision of the Prison Litigation
Reform Act, 28 U.S.C. § 1915. See generally Jennings v. Natrona County
Detention Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999).

                                          -8-
