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 Diamonte Deron
Scott for Writ of Habeas Corpus pursuant to 28 U.S.C. §
2241 (ECF No. 1). At the time the Petition was filed, Scott
was a pretrial detainee at the Lauderdale County Detention
Facility in Meridian, Mississippi. He seeks the dismissal of
his charges for murder and attempted murder (ECF Nos. 1 &
11-1). Respondent Billy Sollie, the Sheriff of Lauderdale
County, Mississippi, filed a Motion to Dismiss (ECF No. 11),
asserting that the Scott has failed to state a claim upon
which relief may be granted, and a Supplement to the Motion
to Dismiss (ECF No. 15), asserting that Scott's Petition
has been rendered moot. Scott has not responded to the Motion
to Dismiss, nor has he responded to the Court's Order to
Show Cause (ECF No. 13), which was returned as undeliverable
(ECF No. 14). Having considered the submissions of the
parties and relevant legal authority, the undersigned United
States Magistrate Judge recommends that Respondent's
Motion to Dismiss be granted.
was arrested in September 2016 on charges of murder and
attempted murder (ECF Nos. 1, 11, & 11-5). He filed his
Petition on June 19, 2018, but he originally filed it as a
Petition under 28 U.S.C. § 2254 (ECF No. 1). However,
because he is challenging his pre-trial detention, the Court
has construed it as a request for relief under 28 U.S.C.
§ 2241 (ECF No. 3). At the time of his Petition, he alleged
that he had been incarcerated for twenty-one months without
an indictment in violation of his right to due process, his
right to an attorney, and the prohibition on cruel and
unusual punishment. The only relief Petitioner seeks is a
dismissal of the murder and attempted murder charges (ECF No.
filed his Motion to Dismiss (ECF No. 11) on August 29, 2018.
He asserts that although Scott has not been indicted on the
murder and attempted murder charges, he has been indicted for
possession of methamphetamine and is awaiting trial in the
Lauderdale County Circuit Court. Respondent also stated that
the United States Marshals Service (USMS) had filed a
detainer on Scott with the Lauderdale County Detention
Facility. With respect to the charges at issue, Respondent
argues that Petitioner is not entitled to the relief he
seeks, as this is an attempt to disrupt the state judicial
process. On October 15, 2018, Respondent filed a Supplement
to the Motion to Dismiss (ECF No. 15), asserting that Scott
has been released into the custody of the USMS and is no
longer at the Lauderdale County Detention Facility. Because
Scott is no longer in state custody, Respondent argues that
his Petition is now moot.
the Court received a letter from Scott (ECF No. 12) shortly
after the Motion to Dismiss was filed, the letter is not a
response to the Motion to Dismiss, and no other response was
filed. Therefore, the Court issued an Order to Show Cause
(ECF No. 13) on October 1, 2018, requiring Scott to respond
to the Motion to Dismiss on or before November 1, 2018. The
Order warned Scott that if he did not file a timely response,
his petition could be dismissed for failure to prosecute. The
Order was mailed to his last known address, but it was
returned as undeliverable (ECF No. 14). Scott has not
responded to the Motion to Dismiss, the Supplement to the
Motion to Dismiss, or the Order to Show Cause.
pretrial detainee'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. Louisiana, 816 F.2d 220, 224 (5th Cir.
1987). The “purpose of this writ 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) (citing Fay v. Noia,
372 U.S. 391, 430 (1963)).
the relief a pretrial detainee may be entitled to 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. 30th Judicial 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 “one who seeks only to
enforce the state's obligation to bring him promptly to
trial.” Brown v. Estelle, 530 F.2d 1280, 1283
(5th Cir. 1976) (citing Braden, 410 U.S. at 491;
Smith v. Hooey, 393 U.S. 374 (1969)). Essentially,
an attempt to dismiss pending charges or prevent prosecution
is an attempt to abort or disrupt, while an attempt to
“force the state to go to trial, ” is merely an
attempt to force the state to fulfill its obligation.
Id. “[T]he former objective is normally not
attainable through federal habeas corpus, [but] the latter
case, the only relief Scott requests is that the charges be
dismissed. This is clearly a request to “abort a state
proceeding or to disrupt the orderly function of state
judicial processes.” Id. Further, even if this
Court were to interpret the Petition as an attempt to enforce
the State's obligation to bring him to trial, Scott has
alleged no “special circumstances” which would
provide justification for the Court to disrupt pending
criminal proceedings. Dickerson, 816 F.2d at 229.
Ultimately, “pre-trial habeas relief is not available
to consider the merits of [Scott's] due process
claim” concerning pre-indictment delay. Id.
this Petition is also subject for dismissal for failure to
prosecute. Fed R. Civ. P. 41(b); Martinez v.
Johnson, 104 F.3d 769, 772 (5th Cir. 1997). Scott has
not responded to the Motion to Dismiss or the Order to Show
Cause, and he has not filed anything in this case since
September 6, 2018. Scott has abandoned this action.
on the above analysis, the undersigned recommends that
Respondent's Motion to Dismiss be granted and Diamonte
Deron Scott's ...