United States District Court, E.D. North Carolina, Western Division
Ulysses W. Perez, Jr., Petitioner,
Cumberland County Clerk of Court, Respondent.
MEMORANDUM & RECOMMENDATION
T. Numbers, II United States Magistrate Judge.
W. Perez, Jr. filed this habeas petition pro se under 28
U.S.C. § 2241. The matter is before the court for a
preliminary review under 28 U.S.C. § 2243. For the
following reasons, Perez's petition should be dismissed.
Initial review under 28 U.S.C. § 2243
is a state pretrial detainee. Pet. at 1, D.E. 6. He
challenges “violations to [his] legal entitlements by
the Cumberland County Judicial System.” Id. at
2. As relief, Perez seeks: (1) immediate dismissal of the all
criminal charges pending against him; (2) his immediate
release from detention; (3) a return of all property seized
during his arrest (4) an apology; and (5) an expungement of
his record. Id. at 8.
habeas corpus application allows a petitioner to challenge
the fact, length, or conditions of custody and to seek
immediate release. See, e.g., Preiser v. Rodriguez,
411 U.S. 475, 484-85 (1973). Pretrial detainees may file a
habeas corpus petition under § 2241. See 28
U.S.C. § 2241; United States v. Tootle, 65 F.3d
381, 383 (4th Cir. 1995). But a state pretrial detainee first
must exhaust other available remedies to be eligible for
habeas corpus relief under § 2241. See Timms v.
Johns, 627 F.3d 525, 530-31 (4th Cir. 2010); Durkin
v. Davis, 538 F.2d 1037, 1041 (4th Cir. 1976)
(“Until the State has been accorded a fair opportunity
by any available procedure to consider the issue and afford a
remedy if relief is warranted, federal courts in habeas
proceedings by state [inmates] should stay their
hand.”) (internal quotations omitted); see also
Jones v. Perkins, 245 U.S. 390, 391-92 (1918) (“It
is well settled that in the absence of exceptional
circumstances in criminal cases the regular judicial
procedure should be followed and habeas corpus should not be
granted in advance of a trial.”); Watkins v.
Cartlege, No. C/A No. 3:13-1129-CMC-JRM, 2013 WL
3282913, at *4 (D.S.C. June 26, 2013) (“Hence, pretrial
detainees involved in state criminal proceedings who seek to
bring challenges to their custody pursuant to § 2241, as
well as state prisoners who seek to challenge their custody
on any basis that may properly be raised pursuant to §
2241, must first exhaust their state-court remedies before
seeking federal habeas corpus relief.”).
clearly states that he was in the pretrial stages of his
North Carolina State criminal proceedings when he filed his
petition. Pet. at 2-8, D.E. 1; Pet'r Ex. D.E. 6-1. Perez
did not exhaust his available remedies in the trial and
appellate courts, and has alleged no exceptional
circumstances sufficient to excuse this failure. Because
Perez's criminal proceedings were ongoing when he filed
his petition, the undersigned recommends dismissal of the
petition without prejudice.
the court may not proceed with this action because federal
courts cannot interfere with a State's pending criminal
proceedings, absent extraordinary circumstances. See
Younger v. Harris, 401 U.S. 37, 44 (1971). A federal
court must abstain from exercising jurisdiction and
interfering with a state criminal proceeding if “(1)
there is an ongoing state judicial proceeding brought prior
to substantial progress in the federal proceeding; that (2)
implicates important, substantial, or vital state interests;
and (3) provides adequate opportunity to raise constitutional
challenges.” See Id. The Supreme Court,
however, has recognized three exceptions to Younger
abstention: “where (1) there is a showing of bad faith
or harassment by state officials responsible for the
prosecution; (2) the state law to be applied in the criminal
proceeding is flagrantly and patently violative of express
constitutional prohibitions; or (3) other extraordinary
circumstances exist that present a threat of immediate and
irreparable injury.” See Id. (quotations
omitted). “[T]he cost, anxiety, and inconvenience of
having to defend against a criminal prosecution alone [does]
not constitute irreparable injury.” See Id.
(quotation omitted; alteration in original).
request for injunctive relief falls within Younger.
First, Perez challenges an ongoing State criminal proceeding.
Second, “North Carolina has a very important,
substantial, and vital interest in preventing violations of
its criminal laws.” Nivens v. Gilchrist, 319
F.3d 151, 154 (4th Cir. 2003). Third, Perez's
“pending state prosecution provides the accused a fair
and sufficient opportunity for vindication of federal
constitutional rights.” Gilliam v. Foster, 75
F.3d 881, 904 (4th Cir. 1996) (en banc) (quotation omitted).
Finally, Perez has not alleged “extraordinary
circumstances” which would qualify under an exception
to Younger. See, e.g., Kirschner v.
Klemons, 225 F.3d 227, 236 (2d Cir. 2000) (“The
defining feature of Younger abstention is that even
though either a federal or a state court could adjudicate a
given claim, when there is an ongoing state proceeding in
which the claim can be raised, and when adjudicating the
claim in federal court would interfere unduly with the
ongoing state proceeding, the claim is more appropriately
adjudicated in state court.”). Thus, the undersigned
alternately recommends dismissal on abstention grounds.
reasonable jurists would not find the court's treatment
of any of petitioner's claims debatable or wrong, and
none of the issues deserve encouragement to proceed further.
See 28 U.S.C. § 2253(c); Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003). Thus, the court
should deny a certificate of appealability.
reasons outlined above, the undersigned recommends that the
court dismiss this action without prejudice and deny Perez a
certificate of appealability.
Clerk of Court must serve a copy of this Memorandum and
Recommendation (“M&R”) on each party who has
appeared in this action. Any party may file a written
objection to the M&R within 14 days from the date the
Clerk serves it on them. The objection must specifically note
the portion of the M&R that the party objects to and the
reasons for their objection. Any other party may respond to
the objection within 14 days from the date the objecting
party serves it on them. The district judge will review the
objection and make their own determination about the matter
that is the subject of the objection. If a party does not
file a ...