Allen v. Maribal

Filing 3

MEMORANDUM AND ORDER: The application for a 1 Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 is denied without prejudice. As petitioner has not made a substantial showing of the denial of constitutional right, a Ce rtificate of Appealability will not issue. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. SO ORDERED by Judge Kiyo A. Matsumoto, on 7/25/2011. C/mailed. Electronic Service upon the U.S. Attorney's Office. (Forwarded for Judgment) (Latka-Mucha, Wieslawa)

FILED

IN CLERK'S OFFICE

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

* DIf>'5~lP~ &',l- E
JUL rS' 2011 ;tl

U.S.

_________________________________x

BROOKLYN OFFICE
CARL ALLEN,
Petitioner,
-against-

MEMORANDUM
AND ORDER
ll-CV-2638 (KAM)

EVL YN MARIBAL, WARDEN,
Respondent.

_____________________________________x
MATSUMOTO, United States District Judge:
On May 31, 2011,pro se petitioner, a pretrial detainee incarcerated at Rikers
Island,! filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241,
challenging his confinement and seeking dismissal of his Richmond County indictment for the
1999 murder of Naomi Ortiz. (ECF No.1, Petition for a Writ of Habeas Corpus Pursuant to
18 U.S.c. § 2241 ("Pet.").) Specifically, petitioner argues that the New York state court has
flagrantly violated the speedy trial provision of the United States Constitution by denying his
December 30,2010 motion to dismiss the indictment and that he is entitled to relief in this
court. The court has reviewed the petition and determined that petitioner is not entitled to the
relief he seeks. Accordingly, for the reasons set forth below, the petition is dismissed without
prejudice.

!The court takes judicial notice that petitioner was arrested on December 10, 2010
pursuant to Richmond County Indictment number 0039012010. See
http://a073-ils-web.nyc.gov/inmatelookup/pages/commonlfind.jsf (last visited July 25, 2010).
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Discussion
Petitioner brings this habeas corpus petition pursuant to 28 U.S.C. § 2241.
Section 2241 permits habeas corpus review for federal or state prisoners "in custody in
violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3).
The habeas corpus statute, however, cannot be used to "permit the derailment of a pending
state proceeding by an attempt to litigate constitutional defenses prematurely in federal court."

Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 493 (1973); see also Younger v. Harris,
401 U.S. 37 (1971) (federal courts cannot intervene in ongoing criminal proceedings except in
the most extraordinary circumstances and upon a clear showing of both great and immediate
harm); Yorkv. Ward, 538 F. Supp. 315, 316 (E.D.N.Y.1982) (federal habeas corpus is not to
be converted "into a pretrial motion forum for state prisoners") (citation omitted). Here,
petitioner seeks to have this court consider his pretrial motion regarding speedy trial. The
court will not do so because it cannot permit the derailment of a pending state proceeding by
an attempt to litigate constitutional defenses prematurely in federal court.
Moreover, a habeas petitioner must exhaust all available state remedies as a
prerequisite to federal jurisdiction. While 28 U. S. C. § 2241 does not on its face require the
exhaustion of state remedies as a prerequisite to the grant of federal habeas relief, the Second
Circuit has superimposed such a requirement to accommodate principles of federalism. See

Simmons v. Rotker, No. 09 Civ. 7228,2010 U.S. Dist. LEXIS 6494, at *2 (S.D.N.Y. Jan. 21,
2010) (citing United States ex reI. Scranton, 532 F.2d 292, 294 (2d Cir. 1976) ("The check on
... premature or unwarranted habeas challenges is the requirement that the petitioner shall
have exhausted all of [his] state remedies. ").) "The exhaustion doctrine is a judicially crafted
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instrument which reflects a careful balance between important interests of federalism and the
need to preserve the writ of habeas corpus as a swift and imperative remedy in all cases of
illegal restraint or confinement." Braden, 410 U.S. at 490 (citation omitted).
The court cannot consider the instant application because petitioner has not
exhausted his available state remedies. See Scranton, 532 F.2d at 296 (pretrial detainee
challenging denial of speedy trial not entitled to habeas relief where state remedies had not
been exhausted); Albanese v. Loughren, No. 05 CV 0572, 2005 WL 1460405, at *1-2
(N.D.N.Y. June 20, 2005) (same). Petitioner states that he attempted to file a motion pursuant
to N.Y.C.P.L. § 30.20/30.30 on the ground that he had been deprived of his constitutional and
statutory right to a speedy trial but that his motion was refused by the state trial court judge
and his attempt to file an appeal was returned to him because the claim had not yet been heard
in the lower court. (Pet. at 2,22.) Petitioner, thus, has not fairly presented his federal
constitutional speedy trial claim to the state court. Because the state proceedings are pending
before the trial court, petitioner's claims have yet to be presented to the highest state court,
and petitioner therefore has not exhausted his available state remedies. See Scranton, 532
F.2d at 296.

Conclusion
The application for a petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2241 is denied without prejudice. As petitioner has not made a substantial showing of the
denial of constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253.
The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in
good faith and therefore in forma pauperis status is denied for purpose of an appeal.

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Coppedge v. United States, 369 U.S. 438,444-45 (1962).

......

I

SO ORDERED.

v
Kiyo A. Matsumoto
United States District Judge

Dated: Brooklyn, New York
July 25, 2011

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