United States District Court, S.D. West Virginia, Huntington
PROPOSED FINDINGS AND RECOMMENDATION
L. Tinsley, United States Magistrate Judge.
before the court is the petitioner's Petition for a Writ
of Habeas Corpus Under 28 U.S.C. § 2254 (ECF No. 3).
This matter is assigned to the Honorable Robert C. Chambers,
United States District Judge, and it is referred to the
undersigned United States Magistrate Judge for submission of
proposed findings and a recommendation for disposition
pursuant to 28 U.S.C. § 636(b)(1)(B).
petitioner filed the instant petition on July 1, 2015, when
he was incarcerated as a pre-trial detainee housed at the
Western Regional Jail in Barboursville, West Virginia, on
charges then pending in the Circuit Court of Cabell County,
West Virginia. According to the petition, the petitioner was
charged with first degree robbery, second degree robbery,
malicious wounding, and misdemeanor obstruction. The petition
contends that the petitioner was being denied his right to a
speedy trial and to have all of the evidence against him
tested and examined before trial. The petition further
indicated that, in addition to pre-trial motions allegedly
filed by his counsel, the petitioner had filed several pro se
motions, including a motion to dismiss his indictment based
upon the alleged speedy trial violation, which the Circuit
Court refused to consider because the petitioner was
represented by counsel. The petition further suggests the
potential judicial bias of the circuit judge assigned to his
case. However, the petition does not indicate what efforts,
if any, the petitioner had taken to exhaust the available
state court remedies prior to filing the instant petition in
preliminary matter, the undersigned concludes that this
petition is not cognizable under 28 U.S.C. § 2254 and,
instead, must be construed as a petition for relief under 28
U.S.C. § 2241. A federal habeas petitioner who is
“in custody pursuant to the judgment of a State court,
” may seek relief pursuant to Title 28, Section
2254(a). However a pretrial detainee is not “in
custody” pursuant to a state court judgment, so section
2254 relief is unavailable. See Dickerson v.
Louisiana, 816 F.2d 220 (5th Cir. 1987). Rather, a
pre-trial detainee's exclusive federal remedy for alleged
unconstitutional confinement is to file a petition for a writ
of habeas corpus under 28 U.S.C. § 2241(c)(3), but only
after fully exhausting the available state remedies.
See 28 U.S.C. § 2241(c)(3); Thomas v.
Crosby, 371 F.3d 782, 786 (11th Cir. 2004) (section 2241
applies to individuals placed in state pre-trial detention).
the petitioner was a pre-trial detainee at the time he filed
the instant petition, he was not in custody pursuant to a
state court judgment and, thus, section 2254 does not apply.
Accordingly, the undersigned construes this petition under
section 2241. However, the petitioner had not exhausted his
claims in state court prior, as required before seeking
federal review. Although section 2241 contains no express
reference to exhaustion of state remedies, as does section
2254, courts have held that exhaustion is necessary prior to
filing a section 2241 petition. See e.g., Braden v. 30th
Jud. Cir., 410 U.S. 484, 490-491 (1973); Moore v.
DeYoung, 515 F.2d 437, 442-43 (3d Cir. 1975). To satisfy
the exhaustion requirement, a habeas petitioner must present
his claims to the state courts such that the courts have the
fair “opportunity to apply controlling legal principles
to the facts bearing upon [his] constitutional claim.”
Picard v. Connor, 404 U.S. 270, 275-77 (1971);
see O'Sullivan v. Boerckel, 526 U.S. 838 845
(1999) (in order to properly exhaust state remedies,
“state prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate
the docket sheet from Cabell County establishes that the
petitioner has not filed a habeas petition with that court.
Moreover, the Clerk of the West Virginia Supreme Court has no
record that the petitioner initiated and completed any
proceeding there, be it a writ of mandamus, writ of
prohibition, or writ of habeas corpus, prior to filing the
instant petition. Therefore, it is clear that the petitioner
did not exhausted his state court remedies, and therefore, he
cannot proceed with a habeas petition before this court.
it appears that any habeas corpus petition challenging the
petitioner's pre-trial detention is now moot in light of
his subsequent conviction and sentencing. The United States
Constitution limits the jurisdiction of federal courts to
actual cases or controversies that are present at all stages
of review. U.S. Const., art. III, § 2; Honig v.
Doe, 484 U.S. 305, 317 (1988); Lewis v. Continental
Bank Corp., 494 U.S. 472, 477-78 (1990). When a case or
controversy no longer exists, the claim is said to be
“moot.” In the context of habeas corpus, a case
is rendered moot when the inmate has been released from the
custody being challenged, without collateral consequences,
and the court can no longer remedy the inmate's
grievance. See, e.g., Spencer v.
Kemna, 523 U.S. 1, 7 (1998); Alston v. Adams,
178 Fed.Appx. 295, 2006 WL 1194751 (4th Cir.
2007); Alvarez v. Conley, 145 Fed.Appx. 428, 2005 WL
2500659 (4th Cir. 2005); Smithhart v.
Gutierrez, 2007 WL 2897942 (N.D. W.Va. 2007).
the petitioner is still incarcerated, he is now in custody as
a convicted and sentenced felon. Thus, the specific issue of
whether the petitioner's pretrial detention was unlawful
is now moot. Although the petitioner may ultimately be able
to pursue habeas corpus relief concerning his conviction and
sentence in this court under 28 U.S.C. § 2254 (the
statute applicable to applications for a writ of habeas
corpus sought by a person in custody pursuant to the judgment
of a state court), he may not do so unless and until he has
exhausted all available state court remedies, as discussed
reasons stated herein, it is respectfully
RECOMMENDED that the presiding District
Judge DENY the petitioner's Petition for
a Writ of Habeas Corpus (ECF No. 3) and dismiss this civil
action. It is further respectfully
RECOMMENDED that the presiding District
Judge specify that the petition was treated as being filed
under 28 U.S.C. § 2241, and that the dismissal thereof
does not count as a dismissal of a first petition under 28
U.S.C. § 2254, despite being docketed as such.
petitioner is notified that this Proposed Findings and
Recommendation is hereby FILED, and a copy
will be submitted to the Honorable Robert C. Chambers, United
States District Judge. Pursuant to the provisions of Title
28, United States Code, Section 636(b)(1)(B), and Rules 6(d)
and 72(b), Federal Rules of Civil Procedure, the petitioner
shall have fourteen days (filing of objections) and three
days (mailing) from the date of filing this Proposed Findings
and Recommendation within which to file with the Clerk of
this Court, specific written objections, identifying the
portions of the Proposed Findings and Recommendation to which
objection is made, and the basis of such objection. Extension
of this time period may be granted for good cause shown.
to file written objections as set forth above shall
constitute a waiver of de novo review by the
District Court and a waiver of appellate review by the
Circuit Court of Appeals. Snyder v. Ridenour, 889
F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S.
140 (1985); Wright v. Collins,766 F.2d 841 (4th
Cir. 1985); United States v. ...