Opinion
Case No. 01-71634
May 30, 2001
OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE
I. Introduction
Petitioner Marcus K. Hines has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner also seeks removal of his state court criminal prosecution from Wayne County Circuit Court to this Court because of an alleged breakdown in the state court system. Because Petitioner has not exhausted his state court remedies, the Court dismisses the petition without prejudice. The Court also holds that removal of the state court action is not appropriate.
II. Analysis
Petitioner is currently incarcerated at the Gus Harrison Correctional Facility in Adrian, Michigan, and is awaiting trial on ten counts of assault with intent to murder and one count of arson. In his petition, he states that a June 6, 2001 trial date has been set.
As an initial matter, Petitioner filed his petition pursuant to 28 U.S.C. § 2254. Section 2254 is an appropriate avenue for habeas corpus relief where a petitioner claims to be "in custody pursuant to the judgment of a State court" in violation of the Constitution. 28 U.S.C. § 2254 (a). In the pending case, Petitioner is awaiting trial and therefore is not incarcerated pursuant to a state court judgment. Pretrial petitions are properly brought under 28 U.S.C. § 2241 which applies to persons who are in custody without regard to whether final judgment has been rendered. See Atkins v. People of the State of Michigan, 644 F.2d 543, 546, n. 1 (6th Cir. 1981). Thus, this Court will construe the petition as having been filed pursuant to 28 U.S.C. § 2241.
Petitioner presents the following claims in his habeas corpus petition:
I. Court error — three statutory limit violations. Beyond seventy-two hours before charged. Beyond fourteen days to preliminary exam. Beyond eleven months on speedy trial right.
II. Ineffective assistance of trial counsel.
III. Prosecutorial vindictiveness in his tactics of prosecution.
IV. Police brutality coerced Petitioner into signing a confession.
A federal court may not grant habeas corpus relief to a state prisoner unless the prisoner first exhausts his remedies in state court.O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). "Ordinarily, the state courts must have had the opportunity to pass on defendant's claims of constitutional violations." Prather v. Rees, 822 F.2d 1418 (6th Cir. 1987). "This rule of comity reduces friction between the state and federal court systems by avoiding the unseemliness of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (internal quotation omitted). Petitioner, who is awaiting trial in state court, has failed to exhaust his state court remedies with respect to any of his claims. The Court notes that a federal court may address a speedy trial issue on habeas review before a trial is held in state court, but exhaustion of state court remedies is still a prerequisite for consideration of such a claim. See Atkins v. Michigan, 644 F.2d 543, 548 (6th Cir. 1981) (holding that federal court could address pretrial petition raising speedy trial claim where Michigan Court of Appeals and Michigan Supreme Court had each addressed the speedy trial claim on interlocutory appeal). However, Petitioner has failed to demonstrate that he has presented his speedy trial claim to any state court.
A federal court may "sometimes appropriately interfere by habeas corpus in advance of final action by the authorities of the State," but such cases are "exceptional" and of "great urgency." Urquhart v. Brown, 205 U.S. 179, 182 (1907). Petitioner has failed to allege any urgent circumstances sufficient to warrant interference by this Court in a matter pending in state court. Similarly, this is not an extraordinary case justifying removal of the case from state court.
Accordingly, the Court dismisses the petition for failure to exhaust state court remedies and denies Petitioner's request for removal.
III. Conclusion
For the foregoing reasons, IT IS ORDERED that the petition for a writ of habeas corpus is DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Petitioner's motion to remove a state court criminal prosecution from Wayne County Circuit Court to the United States District Court for the Eastern District of Michigan is DENIED.