United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION
C. GARGIULO UNITED STATES MAGISTRATE JUDGE
THE COURT is the pro se Petition of Henry Clemons
for Writ of Habeas Corpus under 28 U.S.C. § 2241 (ECF
No. 1). Clemons is a pretrial detainee housed at Lauderdale
County Detention Facility in Meridian, Mississippi.
Respondent William D. “Billy” Sollie, the Sheriff
of Lauderdale County, Mississippi, has filed a Motion to
Dismiss (ECF No. 10). Petitioner has not responded to the
Motion to Dismiss, and he did not respond to an Order to Show
Cause (ECF No. 11) requiring him to respond to the Motion to
Dismiss. Having considered the submissions by Respondent, the
record, and relevant legal authority, the undersigned United
States Magistrate Judge recommends that Respondent's
Motion to Dismiss be granted. Petitioner is not entitled to
habeas relief and has furthermore failed to prosecute his
has been a pretrial detainee since his arrest for murder in
December 2016. Petitioner alleges that the State of
Mississippi is depriving him of his constitutional right to a
speedy trial. (ECF No. 1, at 7). Petitioner complains
regarding not being appointed counsel prior to indictment.
Id. He maintains that he has been denied access to
legal representation and aid. Id. at 6-7. Petitioner
requests legal assistance, a bond reduction, and a speedy
trial. Id. at 8.
response to the Petition, Respondent filed a Motion to
Dismiss on grounds that Petitioner had not exhausted his
state court remedies with respect to his request for a speedy
trial. (ECF No. 10). Respondent offered court records
establishing that on December 22, 2016, Petitioner made his
initial appearance before the Municipal Court of Meridian,
Mississippi, on charges of capital murder and armed robbery.
(ECF No. 10-1). During a preliminary hearing,
Petitioner's bond was set at $1 million on the charge of
murder, with the Court noting that there was insufficient
evidence of armed robbery. (ECF No. 10-2). Respondent
confirmed, via the Lauderdale County Circuit Court
Clerk's Office, that Petitioner was indicted on November
1, 2017, for the charge of murder, and was due to be
arraigned on that charge on November 17, 2017. (ECF No. 10,
at 2). Petitioner now has counsel, who filed a Petition for
Writ of Habeas Corpus in the Circuit Court of Lauderdale
County on October 10, 2017, seeking a reduction in
Petitioner's bond. (ECF No. 10-3).
undersigned issued an Order to Show Cause on February 5,
2018, requiring Petitioner to respond to Respondent's
Motion to Dismiss on or before February 26, 2018. (ECF No.
11). The Order to Show Cause warned Petitioner that, if he
did not file a timely response, his habeas petition was
subject to dismissal for failure to prosecute under Federal
Rule of Civil Procedure 41(b). (ECF No. 11) (citing
Martinez v. Johnson, 104 F.3d 769, 772-73 (5th Cir.
1997) (affirming dismissal of habeas petition for failure to
prosecute under Rule 41(b)). The Order to Show Cause was
mailed by certified mail to Petitioner's last known
address at the Lauderdale County Detention Facility. The
Lauderdale County Detention Facility received the Order to
Show Cause on February 10, 2018. (ECF No. 12). Despite over
four months having passed since that time, Petitioner has not
responded to the Motion to Dismiss.
pretrial prisoner's suit challenging his incarceration is
properly brought pursuant to 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.”
Dickerson v. State of La., 816 F.2d 220, 224 (5th
Cir. 1987). The “purpose of the writ [filed pursuant to
§ 2241] is not to examine the validity of any judgment,
but merely to inquire into the legality of a
detention.” Fain v. Duff, 488 F.2d 218, 222
(5th Cir. 1973) (citations omitted).
under § 2241 is limited. “[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.” Braden v. 30thJudicial Circuit
Court of Kentucky, 410 U.S. 484, 489 (1973) (citing
Ex parte Royall, 117 U.S. 241, 253 (1886)). A
petitioner is not permitted to derail “a pending state
proceeding by an attempt to litigate constitutional defenses
prematurely in federal court.” Id. at 493.
United States Supreme Court has drawn a distinction between a
pretrial petitioner seeking to “abort a state
proceeding or to disrupt the orderly functioning of state
judicial processes” and a petitioner seeking only to
enforce the state's obligation to bring him promptly to
trial. Brown v. Estelle, 530 F.2d 1280, 1283
(5thCir. 1976) (citing Braden, 410 U.S.
at 489-490). If a petitioner is attempting to dismiss the
indictment against him or otherwise prevent prosecution of
the case against him, then he is seeking to “abort a
state proceeding or to disrupt the orderly functioning of
state judicial processes.” Id. 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 him with a prompt trial.
Id. The former objective is generally not attainable
through federal habeas corpus; the latter is. Id.
extent that Petitioner requests the Court to force the state
to provide him with a prompt trial, there is nothing in the
record to indicate that Petitioner has given the state court
an opportunity to review the claim. Dickerson, 816
F.2d at 226; see Reed v. State, 31 So.3d 48, 56-57
(Miss. Ct. App. 2009) (finding criminal defendant may assert
a demand for a speedy trial in the trial court and then he is
required to obtain a pretrial ruling on that motion).
Although 28 U.S.C. § 2241 does not specifically state
that exhaustion is required, it has long been settled that
“federal courts should abstain from the exercise of
[its] jurisdiction if the issues raised in the petition may
be resolved either by trial on the merits in the state court
or by other state procedures available to the
petitioner.” Dickerson, 816 F.2d at 225;
see Montano v. Texas, 867 F.3d 540, 543 (5th Cir.
2017). Petitioner did not respond to the Motion to Dismiss,
and he has not addressed whether he has attempted to utilize
available state procedures to raise his speedy trial
concerns. Petitioner's speedy trial claim is appropriate
for dismissal due to Petitioner's apparent failure to
exhaust available state court remedies.
respect to Petitioner's request for legal aid and a
reduction in bond, Petitioner now has counsel in the
underlying state criminal proceedings, who has filed a
Petition for Writ of Habeas Corpus seeking a reduction in
Petitioner's bond. (ECF No. 10-3). Even assuming that it
was proper to challenge Petitioner's bail in a §
2241 proceeding, Petitioner's request is premature in
light of the fact that the state court has not yet had an
opportunity to review the request.
Petition is also appropriate for dismissal in its entirety
for failure to prosecute. Fed.R.Civ.P. 41(b); see
Martinez, 104 F.3d at 772-73 (affirming dismissal of
habeas petition for failure to prosecute under Rule 41(b)).
Petitioner failed to respond to the Motion to Dismiss and an
Order to Show Cause, requiring that he ...