Mahoney v. United States of America

Filing 5

Judge Nathaniel M. Gorton: ORDER entered treating motion as Section 2241 habeas petition and denying without prejudice and without payment of the filing fee. The Clerk mailed copies of this Memorandum and Order to Petitioner and to Andrew R. Schulman,1838 Elm Street, Manchester, NH 03104. (PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
BRIAN MAHONEY,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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C.A. No. 13-11094-NMG

MEMORANDUM AND ORDER
For the reasons set forth below, the Court construes this
action as seeking habeas relief pursuant to 28 U.S.C. § 2241 and
denies the petition without prejudice and without payment of the
filing fee.
BACKGROUND
Before the Court is Brian Mahoney’s self-prepared pleading
titled “petition to be released on personal recognizes.”

The

“petition” is accompanied by two motions for appointment of
counsel.

Petitioner did not pay the $5.00 filing fee or file a

fee-waiver application.1
Petitioner is detained at FMC Devens in Ayer, Massachusetts
and a search of this Court’s records reveals that he is not a
party to any action in the District of Massachusetts other than

1

Ordinarily, a petitioner will be granted additional time to
comply with the filing fee requirements. However, for the
reasons set forth below, the petition is subject to dismissal
without prejudice.

the instant action.

A search of PACER (Public Access to Court

Electronic Records) reveals that he is a defendant in a criminal
matter now pending in the District of New Hampshire.
States v. Mahoney, C.R. No. 11-00006.

See United

In 2011, a federal grand

jury indicted Mahoney for failing to register as a sex offender,
as required by the Sex Offender Registration and Notification Act
(“SORNA”), 18 U.S.C. § 2250(a).

Id.

Mahoney is represented by

counsel in the criminal proceeding and there is an outstanding
issue of whether he is competent to stand trial.
In the instant petition, Mahoney challenges the
constitutionality of the Adam Walsh Amendments to the Bail Reform
Act of 1984, 18 U.S.C. § 3242(e)(1)(B).

See Pet., ¶ 2.

Mahoney

complains that the trial judge ordered him to remain in custody
[for purposes of undergoing a risk assessment pursuant to the
provision of 18 U.S.C. § 4246] and that he was “not allowed to
call any witnesses on [his] behalf or to present evidence.”
at ¶ 13.

Id.

He further complains that out of the “three attorney’s

(sic) that [he] received[,] not one filed a bail petition with
the District of New Hampshire.” Id. at ¶ 18.

For relief, he asks

the Court to grant his “petition to be released on bail.”

Id. at

¶ 19.
REVIEW
As best can be gleaned from the petition, Mahoney is seeking
a writ of habeas corpus that would cause him to be released from
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pretrial detention.

Although the petition alleges that Mahoney’s

constitutional rights have been violated, the petition fails to
provide any legal authority to support his request for relief.
The Court will review the petition pursuant to 28 U.S.C. §
2241.

Under Rule 4(b) of the Rules Governing § 2254 cases, the

Court is required to examine a habeas petition, and if it
“plainly appears from the face of the motion...that the movant is
not entitled to relief in the district court,” the court “shall
make an order for its summary dismissal.”

Rule 4(b).

See

McFarland v. Scott, 512 U.S. 849, 856 (1994) (habeas petition may
be dismissed if it appears to be legally insufficient on its
face).

A petition for a writ of habeas corpus may also be

summarily dismissed if it fails to set forth facts that give rise
to a cause of action under federal law.

See 28 U.S.C. § 2243.

Rule 4(b) and any other of the Rules Governing § 2254 Cases may
be applied to any other habeas corpus petitions, (i.e., Section
2241 petitions), at the discretion of the district court.

See

Rule 1(b) of the Rules Governing § 2254 Cases.
DISCUSSION
Although Mahoney’s petition is reviewed under Section 2241,
the claims he asserts cannot be raised in a habeas petition.

It

is well-settled that a federal pretrial detainee cannot use a
habeas corpus petition to challenge the proceedings in a pending
federal criminal case. Falcon v. U.S. Bureau of Prisons, 52 F.3d
3

137, 139 (7th Cir. 1995); Whitmer v. Levi, No. 07-4823, 276
Fed.Appx. 217, 218–19 (3rd Cir. 2008) (unpublished opinion); Hall
v. Pratt, No. 03-1387) 97 Fed. Appx. 246, 247–48 (10th Cir. 2004)
(unpublished opinion).
For almost one hundred years, it has been well settled that,
in absence of exceptional circumstances in criminal cases, the
regular judicial procedure should be followed, and habeas corpus
should not be granted in advance of a trial.

Bens v. United

States, 266 F. 152, 155 (2d Cir. 1920) (citing Jones v. Perkins,
245 U.S. 390, 391 (1918)).

Where a defendant is awaiting trial,

the appropriate vehicle for violations of his constitutional
rights are pretrial motions or the expedited appeal procedure
provided by the Bail Reform Act, 18 U.S.C. § 3145(b), (c), and
not a habeas corpus petition.”

Whitmer, 276 Fed. Appx. at 219.

Mahoney cannot use a petition for writ of habeas corpus to
circumvent or interfere with the authority of the presiding judge
in his criminal case without showing extraordinary circumstances
that would allow him to by-pass the normal procedures for raising
his purported claims.

This he failed to do and therefore Section

2241 relief is not available.
ORDER
For the reasons set forth above, the petition is dismissed
without prejudice and without payment of the filing fee.
Clerk shall mail copies of this Memorandum and Order to
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The

Petitioner and to Petitioner’s defense counsel in New Hampshire.
SO ORDERED.
June 17, 2013
DATE

/s/ Nathaniel M. Gorton
NATHANIEL M. GORTON
UNITED STATES DISTRICT JUDGE

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