Booker, Jr. v. Ewald

Filing 4

MEMORANDUM AND OPINION: the instant petition under Section 2241 is dismissed without prejudice to petitioner's right to file a future petition pursuant to Section 2241 after he exhausts his available state remedies, or under 28 U.S.C. § 225 4 after sentencing, if he is convicted on the pending charges. The Clerk of the Court is instructed to enter judgment accordingly and close this case. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum and Order would not be taken in good faith and, therefore, in forma pauperis status is denied for purpose of an appeal. Ordered by Judge Joseph F. Bianco on 8/7/2015. (Bollbach, Jean) cm by chambers to pro se by fcm on 8/7/15

UNITED STATES DISTRICT COURT
F 1Leo
EASTERN DISTRICT OF NEW YO~d~f~tb~K::fo'CI'Ff.f~o.N.v.

*
N 2 15-CV-4253 (JFB)

AUG 07 2015

*

LONG ISLAND OFFICE

FRANK E. BOOKER, JR.,

Petitioner,
VERSUS
CHARLES EWALD,

Respondent.

MEMORANDUM AND ORDER
August 7, 2015
JOSEPH F. BIANCO, District Judge:

Pro se petitioner Frank E. Booker, Jr.
("petitioner" or "Booker"), a state pre-trial
detainee, brings this petition pursuant to 28
U.S.C. § 2241, seeking his immediate
release from custody and the dismissal of all
charges. For the reasons set forth below,
this petition is dismissed without prejudice
to petitioner's right to file a future petition
pursuant to Section 2241 after he exhausts
his available state remedies, or under 28
U.S.C. § 2254 after sentencing, if he is
convicted on the pending charges.

Booker states that he is challenging the
"decision or action to have a third party
enter plea of 'not guilty' on my behalf
without my consent. Also challenging the
impositiOn of bail against me; the
detainment and incarceration of my person
and effects without [] warrant supported by
Oath or Affirmation.
And the
constitutionality thereof."
(!d. at 2.)
Petitioner alleges these events occurred on
July 18, 2015, only two days prior to the
filing of his petition. (!d.) Booker states that
he had not filed any appeal, grievances, or
administrative remedies with respect to the
alleged actions in his petition. (!d.)

I. BACKGROUND

Booker is currently incarcerated at
Suffolk County Correctional Division
pending trial on unspecified charges. (Pet.
at 1.)
In the instant petition, which
petitioner filed pro se on July 20, 2015,

Booker argues that he is being
unlawfully detained and, as such, he seeks a
writ of habeas corpus ordering his release.
Although the grounds for his release are
stated
somewhat
incomprehensibly,
construing his statements as liberally as

.
malicious, or fails to state a claim upon
which relief may be granted; or ... seeks
monetary relief from a defendant who is
immune from such relief."
!d. §
1915A(b)(I )-(2); Liner v. Goard, 196 F.3d
132, 134 (2d Cir. 1999) (noting that sua
sponte dismissal of frivolous prisoner
complaints is not only permitted but
mandatory); see also Tapia-Ortiz v. Winter,
185 F.3d 8, II (2d Cir. 1999). However,
when a plaintiff is proceeding prose, a court
has an obligation to construe his or her
pleadings liberally. See Hughes v. Rowe,
449 U.S. 5, 9 (1980) (quoting Haines v.
Kerner, 404 U.S. 519, 520 (1972)). If a
liberal reading of the complaint "gives any
indication that a valid claim might be
stated," a court cannot dismiss an action sua
sponte. McEachin v. McGuinnis, 357 F.3d
197, 201 (2d Cir. 2004) (quoting Larkin v.
Savage, 318 F.3d 138, 139 (2d Cir. 2003)).

possible, petitiOner raises four issues in
support of his petition, namely: (I) "New
York state statute VTL 511.1A lA; N.Y.
CPL Law§ 170.35(c); and U.S. Constitution
of 1789 sixth amendment as ratified" are
unconstitutional, due to the warrantless
infringement on his "unalienable right to
travel"; (2) that the New York State Unified
Court System is not a sovereign because it
"is a commercial trading company"; (3)
"Pierce Cohalan, d/b/a PUBLIC TRUST,
Judge for Suffolk County District Court,
served as an assistant district attorney for
Suffolk County, as is currently registered as
Foreign Agent and has ordered the
incarceration of my person without
jurisdiction, authority, nor consent granted
by me to do so"; and (4) the New York
vehicle traffic laws violate the Supremacy
Clause of the Constitution, because "the
U.S. Constitution is the 'supreme law of the
land,' and no other laws will supersede it.
Consequently, my private automobile is
being construed as a 'motor vehicle' for the
enforcement of New York Vehicle Traffic
Law to impose the charges alleged. To wit,
I have never used my private automobile for
fare, fee." (Pet. at 6-7.) Based upon
Booker's petition, it is clear that Booker is
seeking to use his habeas petition solely as a
vehicle to challenge the state charges
pending against him and to have these
charges dismissed. For the reasons set forth
below, Booker's petition is denied.

Booker brings his petition pursuant to 28
U.S.C. § 2241, under which state pre-trial
detainees may challenge their detention.
See, e.g., Marte v. Berkman, No. II Civ.
6082 (JFK), 20 II WL 4946708, at *5
(S.D.N.Y. Oct. 18, 2011) (collecting cases),
aff'd sub nom. Marte v. Vance, 480 F. App'x
83 (2d Cir. 2012). However "[a]lthough not
a statutory requirement, Section 2241 has
been interpreted as requiring a petitioner to
exhaust
available
state
court
or
administrative remedies prior to seeking any
relief thereunder in federal court." Robinson
v. Sposato, No. 11-CV-0191 (SJF), 2012
WL 1965631, at *2 (E.D.N.Y. May 29,
2012).

II. DISCUSSION

Under 28 U.S.C. § 1915A, a district
court "shall review, before docketing, if
feasible or, in any event, as soon as
practicable after docketing, a complaint in a
civil action in which a prisoner seeks redress
from a governmental entity or officer or
employee of a governmental entity." 28
U.S.C. § 1915A(a). Upon review, a district
court shall dismiss a prisoner's complaint
sua sponte if the complaint is "frivolous,

Even liberally construed, the instant
petition is frivolous. At root, plaintiff's
petition requests that this Court intervene in
his pending criminal prosecution. In
Younger v. Harris, 401 U.S. 37 (1971), the
Supreme Court held that the district court
could not enjoin an ongoing state
prosecution, regardless of whether the law
2

under which the plaintiff was being
prosecuted was constitutional, citing, inter
alia, the federalism principles central to the
United States Constitution. !d. at 44--45, 56.
The Second Circuit has held that "Younger
abstention is appropriate when: I) there is an
ongoing state proceeding; 2) an important
state interest is implicated; and 3) the
plaintiff has an avenue open for review of
constitutional claims in the state court,"
unless the plaintiff can show extraordinary
circumstances to warrant intervention in the
ongoing proceeding. Hansel v. Springfield,
56 F.3d 391,393 (2d Cir. 1995). "Younger is
not a jurisdictional bar based on Article III
requirements, but instead a prudential
limitation on the court's exercise of
jurisdiction
grounded
in
equitable
considerations of comity." Spargo v. N.Y.
State Comm 'n on Judicial Conduct, 351
F.3d 65, 74 (2d Cir. 2003).

that the state courts are an inadequate forum
for raising his constitutional claims. In fact,
he acknowledges that he has not yet sought
any relief whatsoever in state court, nor has
he filed a grievance or attempted to obtain
an administrative remedy.
Finally,
plaintiff's petition, even construed liberally,
does not state any grounds that would
constitute "extraordinary circumstances"
such that intervention in this ongoing
proceeding would be warranted.
Similarly, it is clear from the face of the
petition, even if non-frivolous, would be
premature. By his own admission, petitioner
has not presented any of these constitutional
arguments in state court, nor has he sought
any administrative remedies. Therefore, the
instant petition cannot be considered by the
Court at this time. See Allen, 20 II WL
3162675, at *2 (a state pre-trial detainee
cannot obtain relief under Section 2241 on
speedy trial grounds when he has not
presented that issue to the state court) (citing
United States ex rei. Scranton, 532 F.2d
292, 296 (2d Cir. 1976); Albanese v.
Loughren, No. 05-CV-0572, 2005 WL
1460405, at *1-2 (N.D.N.Y. June 20,
2005)).

The law is clear that the principles of
Younger apply equally in the Section 2241
habeas context. See, e.g., Allen v. Maribal,
No. 11-CV-2638 (KAM), 2011 WL
3162675, at *I (E.D.N.Y. July 25, 2011)
(Section 2241 "cannot be used to "permit
the derailment of a pending state proceeding
by an attempt to litigate constitutional
defenses prematurely in federal court."')
(quoting Braden v. 30'h Judicial Circuit
Court, 410 U.S. 484,493 (1973)).

III. CONCLUSION
For the foregoing reasons, the instant
petition under Section 2241 is dismissed
without prejudice to petitioner's right to file
a future petition pursuant to Section 2241
after he exhausts his available state
remedies, or under 28 U.S.C. § 2254 after
sentencing, if he is convicted on the pending
charges.
The Clerk of the Court is
instructed to enter judgment accordingly and
close this case. The Court certifies pursuant
to 28 U.S.C. § 1915(a)(3) that any appeal
from this Memorandum and Order would
not be taken in good faith and, therefore, in
forma pauperis status is denied for purpose

Here, all three Younger requirements are
met. First, the complaint reflects that state
proceedings are ongoing in the criminal
action. 1 Second, the resolution of plaintiffs
criminal case is an important state interest.
Third, plaintiff has not alleged (or shown)
1 The New York State Unified Court System's
website lists petitioner's criminal cases, People v.
Booker, Nos. 2015SU030053, 2015SU030054, and
2015SU030055
as
on-going.
See
http://iapps.courts.state.ny.us/webcrim (last visited
August 6, 2015).

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of an appeal. See Coppedge v. United
States, 369 U.S. 438,444-45 (1962).
SO ORDERED.

~iPH.E,. BIANCO'--ited S tes Dtstnct Judge

Date: August 7, 20 I 5
Central Islip, NY

***

Plaintiff is proceeding pro se. Defendant
has not yet appeared in this action.

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