Meyers v. Santa Rita Jail et al

Filing 6

ORDER DISMISSING CASE. Signed by Judge Thelton E. Henderson on 06/16/09. (Attachments: # 1 Certificate of Service)(rbe, COURT STAFF) (Filed on 6/17/2009)

1 2 3 4 5 6 7 8 9 10 11 United States District Court For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 including: Petitioner Leon Lee Meyers, a pretrial detainee housed at the Alameda County Jail, Santa Rita Facility, in Dublin, California, has filed a pro se Petition for Writ of Habeas Corpus using the standard court form for petitions filed under 28 U.S.C. section 2254, which the Court construes as a Petition for Writ of Habeas Corpus under 28 U.S.C. section 2241. Doc. #1. Petitioner also v. SANTA RITA JAIL, et. al., Respondents. / (Doc. #3) LEON LEE MEYERS, Petitioner, ORDER OF DISMISSAL No. C-09-0936 TEH (PR) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

seeks leave to proceed in forma pauperis under 28 U.S.C. section 1915. Doc. #3. Petitioner alleges several claims in his Petition, (1) he was arrested without probable cause; (2) he was

subjected to "vindictive prosecution;" (3) he received ineffective

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assistance of counsel at his arraignment; and (4) he was denied his right to a "speedy preliminary examination" under California Penal Code section 859(b). This Court may entertain a Petition for a Writ of Habeas Corpus under 28 U.S.C. section 2241(c)(3) by a person who is in custody but not yet convicted or sentenced. See McNeely v. Blanas,

336 F.3d 822, 824 n.1 (9th Cir. 2003); Application of Floyd, 413 F. Supp. 574, 576 (D. Nev. 1976). Although there is no exhaustion

requirement for a petition brought under 28 U.S.C. section 2241(c)(3), 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 Sixth Amendment right to a speedy trial not alone an extraordinary circumstance). Because Petitioner has not shown special circumstances that warrant federal intervention before the trial is held and any

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appeal is completed, this Court will abstain and DISMISS the Petition without prejudice. See Carden, 626 F.2d at 84. The

alleged constitutional violations that Petitioner 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 he seeks a federal writ of habeas corpus. Petitioner is advised that he should not file a new federal petition for writ of habeas corpus unless and until 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. Petitioner's application to proceed in forma pauperis application (Doc. #3) is GRANTED. The Clerk is directed to terminate any pending motions as moot and close the file.

IT IS SO ORDERED.

DATED

06/16/09 THELTON E. HENDERSON United States District Judge

G:\PRO-SE\TEH\HC.09\Meyers-09-0936-order of dismissal-abstention.wpd

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