Atwood v. State of Mississippi et al
Filing
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MEMORANDUM OPINION dismissing petitioner's request for habeas relief without prejudice. Signed by District Judge Henry T. Wingate on 8/29/2012 (SM)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
DAVID GARLAND ATWOOD II
VERSUS
PETITIONER
CIVIL ACTION NO. 5:12-cv-75-HTW-LRA
STATE OF MISSISSIPPI, et al.
RESPONDENTS
MEMORANDUM OPINION AND ORDER
This cause is before this Court, sua sponte. Petitioner filed a request for habeas relief
pursuant to Title 28 U.S.C. § 2254, as well as a request for a declaratory judgment pursuant to
Title 28 U.S.C. § 2201. According to the allegations of the petition [1], Petitioner has not been
convicted of the criminal charge he is challenging in the instant habeas petition. Therefore, he is
deemed a pre-trial detainee under the circumstances of the instant civil action. As such, this
Court will construe this habeas as being brought pursuant to Title 28 U.S.C. § 2241.
Petitioner states that he was arrested on July 2, 2011, by members of the Vicksburg
Police Department and Warren County Sheriff’s Department and charged with trespassing in
violation of Mississippi Code Annotated, § 97-17-97. Br. [4] at p. 1. On August 22, 2011,
Petitioner
pled not guilty to the charge of trespassing in the Vicksburg Municipal Court. Pet. [1] at p. 3.
He also filed a Motion to Dismiss the charge of trespassing. Id. Petitioner, however, has not yet
received a ruling on the Motion to Dismiss nor has he been brought to trial on the charge. Id.
Petitioner further contends that the Mississippi trespassing statute § 97-17-97 is
unconstitutional under the circumstances of the instant civil action. Therefore, a “declaratory
judgment setting forth the right[‘s] of the Petitioner and terminating the trespassing controversy”
should be entered. Pet. [1] at p. 8.
Title 28 U.S.C. § 2241 "applies to persons in custody regardless of whether final
judgment has been rendered and regardless of the present status of the case pending against
him." Dickerson v. State of Louisiana, 816 F.2d 220, 224 (5th Cir.), cert. denied, 484 U.S. 956
(1987). While a pre-trial detainee has the right to seek federal habeas relief, the availability of
such relief is not without limits. See Braden v. 30th Judicial Cir. Ct. of Ky., 410 U.S. 484, 48889 (1973). “[F]ederal habeas corpus does not lie, absent ‘special circumstances,’ to adjudicate
the merits of an affirmative defense to a state criminal charge prior to a judgment of conviction
by a state court.” Id. at 489. Morever, the Petitioner is not permitted to derail “a pending state
proceeding by an attempt to litigate constitutional defenses prematurely in federal court.” Id. at
493.
The United States Supreme Court made a distinction between a petitioner seeking to
"abort a state proceeding or to disrupt the orderly functioning of state judicial processes" when
litigating a speedy trial defense before the petitioner goes to trial, Braden, 410 U.S. at 490, and
"one who seeks only to enforce the state's obligation to bring him promptly to trial." Id., (citing
Smith v. Hooey, 393 U.S. 374 (1969)). In Brown v. Estelle, 530 F.2d 1280, 1282-83 (5th Cir.
1976), the United States Court of Appeals for the Fifth Circuit held that the distinction is based
on the type of relief requested by the petitioner. If the petitioner is attempting to prevent the
prosecution of the case, then he is seeking to "abort a state proceeding or to disrupt the orderly
functioning of state judicial processes." Brown, 530 F.2d at 1282-83. If the petitioner is
attempting to "force the state to go to trial," then he is merely seeking to force the state to fulfill
its obligation to provide petitioner with a prompt trial. Id.
In the event, the Petitioner is seeking that the Municipal Court fulfill its obligation to
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provide Petitioner with a prompt and speedy trial, he is required to exhaust his available state
court remedies. See Dickerson v. State of Louisiana, 816 F.2d 220, 225 (5th Cir.), cert. denied,
484 U.S. 956 (1987) (stating that the requirement that a petitioner must exhaust his available
state remedies before he proceeds with a habeas pursuant to 28 U.S.C. § 2241 has been judicially
created). Petitioner states that he has pending in the Municipal Court a motion to dismiss his
pending state criminal charges. Pet. [1] at p. 3. Furthermore, if Petitioner has not received a
decision by the Municipal Court, he has an available remedy by filing a writ of mandamus, as
provided by Mississippi Code Annotated § 11-41-1 (1972). See In re Chisolm, 837 So.2d 183
(Miss. 2003). Therefore, this Court finds that Petitioner has not meet the exhaustion
requirement.
As for Petitioner's requests for a “[s]tay of State court proceedings,” a declaration that the
Mississippi trespassing statute, § 97-17-97, is “unconstitutional as used in these circumstances”
and the “terminat[ion] [of] the trespassing controversy,” this Court cannot grant such relief even
if he exhausts his available state court remedies. Petitioner’s request for a “declaratory judgment
declaring a state criminal statute unconstitutional [i]s unavailable where it would have much the
same effect as an injunction prohibiting enforcement of the statute, and the latter was barred by
traditional principles of equity, comity, and federalism.” Green v. Mansour, 474 U.S. 64, 72
(1985)(citing Samuels v. Mackell, 401 U.S. 66, 73 (1971); see also Smith v. City of Picayune,
No. 94-60692 (5th Cir. May 24, 2995). Moreover, Petitioner’s additional requested relief is no
more than an attempt to stop a state proceeding or to interrupt the systematic functioning of the
state judicial processes. Therefore, federal habeas corpus is not an available remedy for these
claims.
In the instant petition, Petitioner is (1) seeking to circumvent a state proceeding or
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otherwise interfere with the state judicial processes; or (2) he is seeking relief not available via
federal habeas corpus; or (3) he has not completed the exhaustion of his state court remedies
prior to filing this petition. As such, Petitioner’s request for habeas relief will be dismissed
without prejudice.
A Final Judgment in accordance with this Memorandum Opinion and Order will be
entered.
SO ORDERED AND ADJUDGED, this the 29th day of August, 2012.
s/ HENRY T. WINGATE
UNITED STATES DISTRICT JUDGE
Memorandum Opinion and Order
Civil action no. 5:12-cv-75-HTW-LRA
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