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Perez v. Cumberland County Clerk of Court

United States District Court, E.D. North Carolina, Western Division

April 22, 2019

Ulysses W. Perez, Jr., Petitioner,
v.
Cumberland County Clerk of Court, Respondent.

          MEMORANDUM & RECOMMENDATION

          Robert T. Numbers, II United States Magistrate Judge.

         Ulysses 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.

         I. Initial review under 28 U.S.C. § 2243

         Perez 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.

         A 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.”).

         Perez 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.

         Alternatively, 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).

         Perez's 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.

         Finally, 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.

         II. Conclusion

         For the reasons outlined above, the undersigned recommends that the court dismiss this action without prejudice and deny Perez a certificate of appealability.

         The 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 ...


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