Opinion
Civil Action No. 07-cv-02256-BNB.
December 5, 2007
ORDER OF DISMISSAL
Applicant, J. Frederick Nathaniel Mason, III, alleges that he currently is released on bail. He has filed pro se an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (1994). As relief, he asks for the dismissal of the charges pending against him in state court. Mr. Mason has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 (2006).
Mr. Mason alleges that he was arrested for disturbing the peace. He further alleges that on August 23, 2007, he pleaded not guilty by reason of impaired mental condition. He asserts that his trial is set for December 6, 2007. As relief, he asks for the charges against him to be dismissed.
The Court must construe the habeas corpus application liberally because Mr. Mason is representing himself. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972); Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be the pro se litigant's advocate. See Hall , 935 F.2d at 1110. For the reasons stated below, the application will be denied and the action dismissed.
Mr. Mason is not demanding enforcement of his right to be brought to trial promptly. A state prisoner subject to untried charges may bring a pretrial habeas corpus action in federal court pursuant to 28 U.S.C. § 2241 to "demand enforcement of the [State's] affirmative constitutional obligation to bring him promptly to trial." Braden v. 30th Judicial Circuit Court , 410 U.S. 484, 489-90 (1973).
Instead, Mr. Mason seeks to have this Court intervene in his state court proceedings. The Court will not do so because "`federal courts should abstain from the exercise of [ 28 U.S.C. § 2241] jurisdiction if the issues raised in the petition may be resolved either by trial on the merits in the state court or by other state procedures available to the petitioner.'" Capps v. Sullivan , 13 F.3d 350, 354 n. 2 (10th Cir. 1993) (quoting Dickerson v. Louisiana , 816 F.2d 220, 225 (5th Cir. 1987)). Accordingly, it is
ORDERED that the habeas corpus application is denied and the action dismissed without prejudice.