Haru-Bey v. Hammond

Full title: HARU-BEY v. REGINALD HAMMOND, et al

Court: United States District Court, E.D. Pennsylvania

Date published: Mar 17, 2004

CIVIL ACTION NO. 03-6640 (E.D. Pa. Mar. 17, 2004)

Opinion

CIVIL ACTION NO. 03-6640

March 17, 2004

REPORT AND RECOMMENDATION

M. FAITH ANGELL, Magistrate Judge

Presently before this Court is a pro se § 2254/2241 habeas petition. Petitioner is currently incarcerated at Curran-Fromhold Correctional Facility ["CFCF"] in Philadelphia. Mr. Bey represents that he is in pretrial status on charges of "robbery/murder, ect, ect. [sic]" See "Petition For Writ of `Habeas Corpus' (2255), (2254). Motion to Vacate And Dismiss Due To Violations Of the U.S. Constitution Amend. 5^th, 6^th, 14^th U.S.C.A" [Docket Entry No. 1].¹ For the reasons which follow, it is recommended that the Petition for Writ of Habeas Corpus be summarily dismissed for failure to exhaust state remedies.

1 Hereinafter "habeas petition."

BACKGROUND

On October 22, 2003, Petitioner filed a self-styled habeas petition. In this pleading, Mr. Bey argues:

"On January 13, 2001, I, Haru-Bey, ex rel. Cerrone Furman, was arrested and charged with robbery/murder, ect., ect [sic] My trial date was set for December 8, 2003, approximately 1,060 days after my arrest which is a blatantly clear violation of `Due Process' of the law."

See Habeas Petition at p. 2.

Petitioner requests that following relief:

"I have been denied a speedy trial, and where deprivation of constitutional right to speedy trial has been infringed upon, dismissal of charges `with prejudice' is the only possible remedy. [. . .] The Commonwealth's failure to give me a prompt trial shows a `lack of due diligence' on their part and violates Due Process!"

See February 5, 2004 letter addressed to me from Petitioner.²

2 Mr. Bey sent the February 5, 2004 letter in response to my January 30, 2004 Order directing him to refile his habeas petition on a current § 2254 habeas form.

DISCUSSION

Under 28 U.S.C. § 2241, federal courts have jurisdiction to issue a habeas writ before a judgment is issued in a state criminal proceeding. Moore v. DeYoung, 515 F.2d 437, 441-42 (3d Cir. 1975). However, "[. . .] that jurisdiction without exhaustion should not be exercised at the pre-trial stage unless extraordinary circumstances are present." Id. at 443 (3d Cir. 1975)(citing, inter alia, Frisbie v. Collins, 342 U.S. 519, 520-21 (1952)).

While it has not defined the parameters of the "extraordinary circumstances" exhaustion exception, the Third Circuit has stated that the habeas petitioner must present allegations that "reveal that quality of delay, harassment, bad faith or other intentional activity which, in an appropriate situation, might constitute an `extraordinary circumstance', justifying pre-exhaustion federal habeas relief." Lambert v. Blackwell, 134 F.3d 506, 517 (3d Cir 1997) (quoting Moore v. DeYoung, 515 F.2d at 447 n. 12 (3d Cir. 1975)), cert denied, 532 U.S. 919 (2001).

In the instant case, while Mr. Bey asserts that his trial date was scheduled for "1,060 days" after his arrest, he makes no allegations of harassment, bad faith or other intentional activity. I find nothing in the Petitioner's pleadings that rises to the level of extraordinary circumstances warranting pre-exhaustion federal habeas relief. See Moore v. DeYoung, 515 F.2d at 445-46 (3d Cir. 1975) (denying petitioner's request for habeas and injunctive relief for alleged denial of his speedy trial rights, and noting that Moore's case was "precisely the situation anticipated by the Supreme Court's caveat that federal courts should not permit the claimed denial of a speedy trial, presented in a pre-trial application for habeas, to result in the `derailment of a pending state proceeding.'").

Further, the relief sought by Mr. Bey, immediate dismissal of all charges against him, is outside the scope of federal habeas statute. 28 U.S.C. § 2241 authorizes federal courts to grant a habeas writ to a prisoner who is being subjected to unconstitutional detention, but does not permit this court to sit as `"a pretrial motion forum for state prisoners.'" Id., at 445 (3d Cir. 1975) (quoting Braden v. 30^th Judicial Circuit Court of Kentucky, 410 U.S. 491, 493 (1973)).

Therefore, I make the following recommendation.

RECOMMENDATION

Consistent with the above discussion, I recommend that Mr. Bey's habeas petition be SUMMARILY DISMISSED WITHOUT PREJUDICE FOR FAILURE TO EXHAUST STATE REMEDIES. It is further recommended a finding be made that there is no probable cause to issue a certificate of appealability.