White v. 22nd Judicial District

Filing 3

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Anthony S. White. It is RECOMMENDED that Petitioner's Application for Writ of Habeas Corpus be construed as an application brought pursuant to 28 U.S.C. 2241 and be dismissed without prejudice. Signed by Judge Robert Pitman. (dm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

ANTHONY S. WHITE,
Petitioner,
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Case No. A-11-CA-649-SS

22ND JUDICIAL DISTRICT,
Respondent.
__________________________________________

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
To:

The Honorable Sam Sparks, United States District Judge
The Magistrate Court submits this Report and Recommendation to the District Court

pursuant to 28 U.S.C. § 636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrates Judges, as amended.
Before the Court is Petitioner’s application for habeas corpus relief. The Court presumes
Petitioner is seeking leave to proceed in forma pauperis, and leave to proceed in forma pauperis is
granted. For the reasons set forth below, the undersigned finds that Petitioner’s application for writ
of habeas corpus should be dismissed.

Background
According to Petitioner, he is incarcerated in the Hays County Jail. He is being held on
criminal charges that were brought against him in Hays County in Cause No. CR-11-0438. Those
charges are currently pending; he has not yet been convicted or sentenced.
He files the current petition for writ of habeas corpus by a person in state custody alleging
the indictment is based on perjury, his prosecution violates due process and equal protection because
the victim executed a non-prosecution affidavit, his court appointed attorney lies and told the victim
to not file an affidavit on Petitioner’s behalf, he has had no contact with his court appointed attorney,
no full investigation has been conducted, Petitioner married the victim on July 21, 2011 and the
victim will not testify, the bruises and scratches on the victim may have occurred during intercourse
and not during an argument, and his prosecution violates double jeopardy. Petitioner asserts he has
a right to a fair trial, and he is innocent until proven guilty.
Unrelated to his pending criminal charges Petitioner alleges he is not receiving the proper
medical attention at the Hays County Jail and he is being forced to live in unsanitary conditions. In
addition, he claims he was slandered by a newspaper, because his picture and charges were printed
in the paper.
Analysis
1.

Habeas Claims

Although Petitioner indicates his petition is filed pursuant to 28 U.S.C. § 2254, it is wellestablished a state pre-trial detainee may challenge the power and authority of the State to bring him
to trial and the constitutionality or lawfulness of his present confinement by petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241. Dickerson v. Louisiana, 816 F.2d 220, 224 (5th Cir.
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1987) (“Pre-trial petitions such as [Petitioner]’s are properly brought under 28 U.S.C. § 2241, which
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.”). Accordingly, Petitioner’s application for
habeas corpus relief should be construed as an application brought pursuant to 28 U.S.C. § 2241, as
this is the proper vehicle.
Under § 2241 “federal 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.” Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 489 (1973). The
Supreme Court’s discussion in Braden shows this distinction typically turns on the type of relief
sought by a petitioner: “an attempt to dismiss an indictment or otherwise prevent a prosecution” is
normally not attainable through a federal habeas corpus action, while “an attempt to force the state
to go to trial” is, although a requirement of exhaustion of state remedies must be met. See Brown
v. Estelle, 530 F.2d 1280, 1283 (5th Cir. 1976). Thus, absent “special circumstances” pre-trial
habeas relief is available only to enforce a state’s obligation to bring a defendant promptly to trial,
not to adjudicate the merits of a speedy trial claim under the Sixth Amendment and bar the state from
proceeding to trial. Dickerson, 816 F.2d at 224.
In the present case, Petitioner readily admits that his conviction is not yet final. The Court
can find nothing in Petitioner’s application for writ of habeas corpus that indicates “special
circumstances” exist which would allow the Court to consider the merits of his claims before he has
been tried.
Moreover, Petitioner is required to show he is “in custody” and has exhausted his available
state remedies in order to be eligible for habeas relief. Braden, 410 U.S. at 488-89; Dickerson, 816
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F.2d at 224. In the present case, Petitioner represents he is in custody in the Hays County Jail.
However, Petitioner must also show he has exhausted his state court remedies, which he has not
done.1 See Braden, 410 U.S. at 490.
Generally, the exhaustion requirement is satisfied only when all grounds urged in a federal
petition were previously presented to the state’s highest court in a procedurally proper manner.
Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988). Petitioner admits he is raising his claims for the
first time in this Court. In short, based on the information in the record, the state courts have not had
the opportunity to consider or resolve the issues Petitioner raises. The exhaustion requirement is
obviated only if “special circumstances” exist, see Dickerson, 816 F.2d at 225 (citing Braden, 410
U.S. at 489), which the Court has already found is not the case in the present action. Therefore,
absent a showing the highest state court with criminal law jurisdiction has been given a fair
opportunity to consider Petitioner’s claims, comity requires this Court to defer.
In sum, Petitioner’s application for federal habeas corpus relief must be dismissed because
his claims are insufficient under Braden to justify federal habeas relief and because he has failed to
exhaust state remedies. Pre-trial habeas relief is not available to consider his claims under the
circumstances of this case, as federal habeas relief should not be used as a “pre-trial motion forum
for state prisoners.” Dickerson, 816 F.2d at 229.
1

Although § 2241 does not contain an express exhaustion requirement, exhaustion is
nevertheless required where pre-trial issues are concerned, under the theory that federal courts should
abstain from interference with matters that are pending in the state courts “if the issues raised in the
petition may be resolved either by a trial on the merits in the state court or by other state procedures
available to the petitioner.” Dickerson, 816 F.2d at 225 (citing Braden, 410 U.S. at 489-92 (citations
omitted)). Thus, an exhaustion requirement for petitions filed under § 2241 has been “judicially
crafted on federalism grounds in order to protect the state courts’ opportunity to confront and resolve
initially any constitutional issues arising within their jurisdictions as well as to limit federal
interference in the state adjudicatory process.” Id. (citing Braden, 410 U.S. at 490-91).
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2.

Non-Habeas Claims

Petitioner’s slander claim and claims regarding his medical care and conditions of
confinement are not properly brought in an application for habeas corpus relief. Ordinarily, the
Court would recommend these claims be severed from the habeas claims and be filed in a new civil
action. However, Petitioner has not named any defendants with regard to these claims, and his
allegations are deficient. Accordingly, the Court recommends these claims be dismissed without
prejudice to refiling in a new civil action.2
RECOMMENDATION
It is therefore recommended that Petitioner’s Application for Writ of Habeas Corpus be
construed as an application brought pursuant to 28 U.S.C. § 2241 and be dismissed without
prejudice. It is further recommended that Petitioner’s non-habeas claims be dismissed without
prejudice to refiling in a civil action.
OBJECTIONS
Within 14 days after receipt of the magistrate judge's report, any party may serve and file
written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636
(b)(1)(C). Failure to file written objections to the proposed findings and recommendations contained
within this report within 14 days after service shall bar an aggrieved party from de novo review by
the district court of the proposed findings and recommendations and from appellate review of factual
findings accepted or adopted by the district court except on grounds of plain error or manifest

2

To avoid any delay in filing a new complaint the Clerk of the Court is directed to forward
forms for filing civil rights actions to Petitioner.
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injustice. Thomas v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-277 (5th
Cir. 1988).
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 28th day of July, 2011.

_____________________________________
ROBERT PITMAN
UNITED STATES MAGISTRATE JUDGE

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