Opinion
No. C 04-2047 SI (pr).
June 21, 2004
ORDER OF DISMISSAL
This action is dismissed without prejudice to petitioner filing a new habeas action if he is convicted and after he has exhausted his state court remedies by giving the state's highest court a fair opportunity to rule on the merits of each of his claims.
IT IS SO ORDERED AND ADJUDGED.
Homer Hawkins, currently incarcerated in the Marin County Jail, filed a petition for writ of habeas corpus, apparently under 28 U.S.C. § 2241. The pleading is now before the court for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases.
Hawkins is a pretrial detainee. According to his petition, he is representing himself in a criminal trial that has not yet occurred. He alleges in his petition that he is not being allowed the pro per privileges at the county jail necessary to represent himself, the judge is biased, there has been aMiranda violation, the jail has violated his attorney-client privilege, his mail has been opened improperly, no grand jury was provided for his case, and his speedy trial right has been violated.
Principles of comity and federalism require that this court abstain and not entertain a pretrial habeas challenge unless the petitioner shows that: (1) he has exhausted available state judicial remedies, and (2) "special circumstances" warrant federal intervention. Carden v. Montana, 626 F.2d 82, 83-84 (1980), cert. denied, 449 U.S. 1014 (1980); see also Younger v. Harris, 401 U.S. 37, 43-54 (1971) (under principles of comity and federalism, a federal court should not interfere with ongoing state criminal proceedings by granting injunctive or declaratory relief absent extraordinary circumstances). The special circumstances that might warrant federal habeas intervention before trial include proven harassment, bad faith prosecutions and other extraordinary circumstances where irreparable injury can be shown. Carden, 626 F.2d at 84 (violation of speedy trial right not alone an extraordinary circumstance). Because Hawkins has not shown special circumstances that warrant federal intervention before the trial is held and any appeal is completed, his petition is DISMISSED without prejudice. See id. at 84. The alleged constitutional violations that Hawkins claims he is enduring are matters that can and should be addressed in the first instance by the trial court, and then by the state appellate courts, before Hawkins seeks a federal writ of habeas corpus.
The court notes that one of Hawkins' claims has no merit as a matter of law. Hawkins had no right to be indicted by a grand jury. Prosecution by grand jury indictment has long been heldnot to be required of the states by the Due Process Clause.See Hurtado v. California, 110 U.S. 516, 538 (1884) (grand jury indictment not necessary for California because adequate procedural protection existed under system which permitted proceeding by information after examination and commitment by a magistrate certifying to the probable guilt of defendant);Jeffries v. Blodgett, 5 F.3d 1180, 1188 (9th Cir. 1993), cert. denied, 510 U.S. 1191 (1994).
The action also is dismissed for the independent reason that a proper respondent was not named in the petition. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996). Although the absence of a proper respondent is a defect that ordinarily could be cured by amendment of the petition, leave to amend will not be granted because abstention is required with or without the proper respondent.
This action is dismissed because Hawkins did not exhaust his state court remedies before filing his habeas petition. This dismissal does not comment on the merits of any of Hawkins' claims (except the grand jury claim, which would be meritless whenever raised), but instead is based simply on the timing problem, i.e., the petition is premature. Hawkins should not file a new federal petition for writ of habeas corpus unless he gets convicted and then not until his direct appeal and state habeas proceedings have concluded and he has given the state's highest court a fair opportunity to rule on each of his claims.
The in forma pauperis application is GRANTED. (Docket #5.)
The clerk shall close the file.
IT IS SO ORDERED.