The opinion of the court was delivered by: TERRENCE F. McVERRY, District Judge
MEMORANDUM OPINION AND ORDER
James Van Divner (Petitioner), is in state custody, awaiting
trial in Fayette County. He has brought this habeas petition
through his counsel, Leonard Sweeney. Petitioner is charged with
first degree murder and he alleges that he is facing the possible
imposition of the death penalty. He further alleges that his
trial will commence on Monday, August 29, 2005. Petitioner
asserts that he had requested the Court of Common Pleas of
Fayette County to direct that Fayette County cover the costs of
several expert witnesses including a "physiological and/or
psychiatric witness, a ballistic expert, and a forensic expert,
which Movant's counsel suggests are necessary and vital to Movant
being adequately represented and receiving a fair trial." Doc. 1
at ¶ 6. Petitioner alleges that the Court of Common Pleas denied
his requests for experts to be provided at state expense.
Petitioner proclaims that such a denial violates his federal
Constitutional rights and that such denial was "improperly
decided and unlawful." Id. at ¶ 11. Petitioner further alleges
that he believes that he will not receive all rights due him
under the Federal Constitution, unless he is afforded access to a
physiological and/or psychiatric witness, a ballistic expert and
a forensic expert. Petitioner contends that "if any trial occurs
where he does not have access to a physiological and/or
psychiatric witness, a ballistic expert and a forensic expert, he
will forever be unable to obtain a fair trial." Id. at ¶ 8.
Petitioner does not elaborate nor does he explain why, if, after
the trial, the denial of such experts is subsequently deemed to
be a violation of his federal rights either by a State appellate
Court, or a federal habeas court, a re-trial with such experts
being provided could not constitute a fair trial. By way of relief, Petitioner seeks to have this Court issue a
writ of habeas corpus to "the Court of Common Pleas of Fayette
County, its Judges, the Warden of the Fayette County Prison and
the Fayette County District Attorney, commanding them to appear
before the Court and to do and receive whatever the court may
consider right on Petitioner's behalf." Id. at unnumbered p. 2.
Petitioner also requests this court to issue a stay of
Petitioner's state court trial pending a hearing on this
This habeas petition was filed electronically on August 25,
2005. The petition was received in chambers on Friday, August 26,
2005. The docket does not affirmatively disclose whether the
petition has been served on any of the Respondents.
A. Court's Jurisdiction and Authority to Dismiss
The Court's jurisdiction to entertain this petition is premised
on 28 U.S.C. § 2241. McDowell v. Chesney, No. CIV.A.
03-818-JJF, 2004 WL 1376591, at *3 (D. Del. June 17, 2004). See
also Moore v. DeYoung, 515 F.2d 437 (3d Cir. 1975).
As noted above, it is not clear whether the petition has been
served on any respondent. However, a federal district court
possesses the power to dismiss a habeas petition, prior to
service, if it is plain that the petitioner is not entitled to
relief. See Rule 4 of the Rules governing Section 2254 cases.
Rule 4 provides in relevant part that:
The [Section 2254] petition shall be examined
promptly by the judge to whom it is assigned. If it
plainly appears from the face of the petition and any
exhibits annexed to it that the petitioner is not
entitled to relief in the district court, the judge
shall make an order for its summary dismissal and
cause the petitioner to be notified.
In interpreting Rule 4 of the Rules Governing Section 2254
Proceedings, the Advisory Committee Notes to Rule 4 observe that
28 U.S.C. § 2243 requires that the writ shall be
awarded, or an order to show cause issued, "unless it
appears from the application that the applicant or
person detained is not entitled thereto." Such
consideration, may properly encompass any exhibits
attached to the petition, including, but not limited
to, transcripts, sentencing records, and copies of
state court opinions. The judge may order any of
these items for his consideration if they are not yet
included with the petition. In addition to ordering state court records and/or opinions, a
federal habeas court may take judicial notice of those state
court records and/or state court dockets. See, e.g., Brown
v. Whetsel, No. CIV-05-568-F, 2005 WL 1606457 (W.D. Okla. June
1, 2005) (in Rule 4 case, court took judicial notice of state
court docket); United States ex. rel. Martin v. Gramley, No. 98
C 1984, 1998 WL 312014, at *1 (N.D. Ill. June 3, 1998) (In a Rule
4 summary dismissal, the court took "judicial notice of the
opinion of the Illinois Appellate Court in this case.").
Although by its terms Rule 4 applies only to Section 2254
petitions, "Courts have used Rule 4 of the habeas corpus rules to
summarily dismiss facially insufficient habeas petitions brought
under § 2241." Perez v. Hemingway, 157 F.Supp.2d 790, 795 (E.D.
Mich. 2001) (citing Howard v. Haley, No. CIV. A. 01-0065-BH-S,
2001 WL 303534, * 1 (S.D. Ala. March 8, 2001) and Howard v.
Certain Unnamed Aircraft Pilots, No. 90 C 7197, 1995 WL 431150,
*2 (N.D. Ill. July 18, 1995). Accord United States v.
Recinos-Gallegos, 151 F.Supp.2d 659 (D. Md. 2001) (dismissing
petition construed as Section 2241 pursuant to Rule 4). See
also Castillo v. Pratt, 162 F.Supp.2d 575, 577 (N.D. Tex.
2001) ("The Supreme Court intended the 2254 Rules to apply to
petitions filed under § 2241. See Rule 1(b) of the 2254 Rules");
Ukawabutu v. Morton, 997 F.Supp. 605, 608 n. 2 (D.N.J. 1998)
("I refer to these rules [i.e., Rules Governing Section 2254
Cases] as the `Habeas Corpus Rules' because they apply to
petitions filed pursuant to 28 U.S.C. § 2241 as well as
28 U.S.C. § 2254."); Wyant v. Edwards, 952 F.Supp. 348, 352 (S.D. W.Va.
1997) ("the Court has concluded that the § 2254 Rules were
intended to apply to § 2241 cases . . ."). Dismissal under Rule 4
has been applied to pre trial habeas petitions on grounds
including a petitioner's failure to exhaust. See, e.g.,
Hopkins v. Sheriff of Comanche County, 2005 WL 1140735 (W.D.
Okla. April 14, 2005), report and recommendation adopted by, 2005
WL 1242397 (W.D. Okla. May 12, 2005).
Although it has long been established that there is power in
the federal courts to consider on habeas corpus the merits of a
constitutional defense to a state criminal charge in advance of a
final judgment of conviction, Ex parte Royall, 117 U.S. 241,
253 (1886), considerations of federalism counsel strongly against
exercising the power except in the most extraordinary circumstances. Braden v. 30th Judicial Circuit Court of
Kentucky, 410 U.S. 484
, 489-91 (1973). The Court of Appeals for
the Third Circuit has succinctly summarized the law governing the
exercise of federal habeas power in regards to a state prisoner
who seeks habeas relief prior to his state trial:
(1) federal courts have "pre-trial" habeas corpus
(2) that jurisdiction without exhaustion should not
be exercised at the pre-trial stage unless
extraordinary circumstances are present.
(3) where there are no extraordinary circumstances
and where petitioner seeks to litigate the merits of
a constitutional defense to a state criminal charge,
the district court should exercise its "pre-trial"
habeas jurisdiction only if petitioner makes a
special showing of the need for such adjudication and
has exhausted state remedies.
Moore v. DeYoung, 515 F.2d at 443 (citations omitted). As I
read Moore v. DeYoung, the first question to be asked, as a
matter of logic, is whether there "are extraordinary
circumstances" because if there are, then exhaustion of state
court remedies is not required; if there are not extraordinary
circumstances, then exhaustion is required. It is a habeas
petitioner's burden to show the existence of such extraordinary
circumstances so as to justify a federal habeas court's
entertaining the habeas petition prior to the state prisoner's
state criminal trial. See, e.g., DeYoung v. O'Neal,
76 F.3d 385 (Table), 1996 WL 32137, *1 (9th Cir. 1996) ("DeYoung has
not demonstrated extraordinary circumstances warranting federal
interference with his pending state criminal prosecution.
Accordingly, the district court properly dismissed DeYoung's
habeas petition."); U.S. ex rel. Bryant v. Shapp,
423 F.Supp. 471, 474 (D. Del. 1976) ("the petitioner has not shown the
`extraordinary circumstances' which have justified, in other
pre-trial habeas corpus cases, the interposition of federal
habeas relief in advance of the state criminal proceeding.").
Petitioner has made no argument concerning the existence of
extraordinary circumstances yet alone pointed to any
extraordinary circumstances which would justify the court's
entertaining this pre-trial habeas petition. "Neither the Third
Circuit nor the United States Supreme Court has explicitly
described the `boundaries of extraordinary circumstances'
[sufficient] to warrant pretrial interference.'" McDowell v. Chesney, 2004 WL 1376591 at *6.
While the Third Circuit Court has not defined the parameters of
"extraordinary circumstances", it has stated that the habeas
petitioner must present allegations that "reveal that quality of
delay, harassment, bad faith or other intentional activity which,
in an appropriate situation, might constitute an `extraordinary
circumstance', justifying pre-exhaustion federal habeas relief."
Lambert v. Blackwell, 134 F.3d 506, 517 (3d Cir. 1997)
(quoting Moore v. DeYoung, 515 F.2d at 447 n. 12 (3d Cir.
1975)), cert. denied, 532 U.S. 919 (2001). Here, no such
allegations have been made. Petitioner has not explained why the
petition for permission to appeal an interlocutory order, which
he filed in the Superior Court on August 26, 2005, of which this
Court takes judicial notice,*fn1 is not an adequate state
court remedy so as to protect his federal rights. Neither has
Petitioner explained why this court should intervene in the
proper workings of the state appellate court by entertaining this
petition prior to him exhausting his state court remedies.
Petitioner does not explain why the interlocutory appeal
currently pending in the State Superior Court is not sufficient
to protect his federal rights. Nor has he explained why an appeal
to the Superior Court following his trial (assuming that he was
convicted) in the normal course would not be sufficient to
protect his rights. See, e.g., Rhodes v. Plummer, 1996 WL
721825 (N.D. Cal., Dec. 9, 1996) ("Unlike constitutional rights
which can be enjoyed only if vindicated prior to trial, such as
violations of the Double Jeopardy Clause or immunity from
criminal prosecution, the right to be free from vindictive
prosecution may be corrected through postconviction proceedings.
As stated by the Supreme Court: `Obviously, it is wholly
desirable to correct prior to trial any substantive errors
noticed at that time. . . . Nevertheless, reversal of the
conviction and, where the Double Jeopardy Clause does not dictate
otherwise, the provision of a new trial free of prejudicial error
normally are adequate means of vindicating the constitutional
rights of the accused.'"). Having failed to carry his burden to
show extraordinary circumstances so as to justify this court's
entertaining the habeas petition prior to trial and without exhaustion of state
court remedies, Petitioner may yet have this petition entertained
if he can "make a special showing of the need for" this court to
adjudicate his claims and that he has exhausted his state court
remedies as required by Moore v. DeYoung, 515 F.2d at 443,
otherwise, the petition should be dismissed.
Although the present petition is properly addressed as being
filed pursuant to 28 U.S.C. § 2241, not Section 2254,
nonetheless, exhaustion of state court remedies is required.
Moore v. DeYoung, 515 F.2d at 442. In order to exhaust state
remedies, a "claim must be presented not only to the trial court
but also to the state's intermediate court as well as to its
supreme court." Evans v. Court of Common Pleas, Delaware County,
Pa., 959 F.2d 1227, 1230 (3d Cir. 1992). Moreover, "[a]
petitioner is not deemed to have exhausted the remedies available
to him if he has a right under the state law to raise, by any
available procedure, the question presented." Cobb v. Hammond,
No. CIV.A. 03-5181, 2004 WL 828365, *1 (E.D. Pa. March 22, 2004).
The animating principle of exhaustion is based upon
considerations of comity. See, e.g., Fay v. Noia,
372 U.S. 391, 418 (1963) ("comity demands that the state courts, under
whose process he is held, and which are, equally with the federal
courts, charged with the duty of protecting the accused in the
enjoyment of his constitutional rights, should be appealed to in
the first instance. . . ."), overruled on other grounds,
Coleman v. Thompson, 501 U.S. 722 (1991). Generally, federal
court intervention would be premature whenever a state
procedure still affords a petitioner with an opportunity to
obtain relief . . . in a federal habeas proceeding. See
Lambert v. Blackwell, 134 F.3d at 513 ("The exhaustion
requirement does not foreclose federal relief, but merely
postpones it."). Thus, the federal habeas doctrine of exhaustion
is centered on the timing of the federal petition, i.e., was
the federal habeas petition filed before the state prisoner has
finished utilizing the state court procedures available to him or
her. Richardson v. Miller, 716 F.Supp. 1246, 1266 (W.D. Mo.
1989) ("Fay v. Noia then explained that the doctrine of
exhaustion has always been based solely on principles of comity
and, as such, did no more than establish a `rule of timing' under
which, as a matter of comity, the State courts would be afforded
the first opportunity to consider a state prisoner's federal
claims before a federal court should exercise the habeas corpus
power and jurisdiction. . . .") (citations omitted). The habeas petitioner has the burden of establishing that
exhaustion has been satisfied. Ross v. Petsock, 868 F.2d 639,
643 (3d Cir. 1989); O'Halloran v. Ryan, 835 F.2d 506, 508 (3d
Cir. 1987). Petitioner has not carried that burden. He failed to
even plead that he exhausted his state court remedies. Indeed,
Petitioner has not exhausted his state court remedies, because
as noted above, he has a presently pending request for an
interlocutory appeal to the State Superior Court. See, e.g.,
Rose v. Lundy, 455 U.S. 509, 518 (1982) (in habeas cases
involving a state prisoners, "federal courts apply the doctrine
of comity, which teaches that one court should defer action on
causes properly within its jurisdiction until the courts of
another sovereignty with concurrent powers, and already
cognizant of the litigation, have had an opportunity to pass
upon the matter.") (emphasis added). In light of his failure to
exhaust and his currently pending interlocutory appeal,
Petitioner has failed to show that he exhausted his state court
remedies. Having failed to show the exhaustion of state court
remedies, this court need not address whether Petitioner has also
made "a special showing of the need for" this court to adjudicate
his claims within the meaning of Moore v. DeYoung, as Moore
requires him to demonstrate both a special showing of a need and
that he exhausted state court remedies. Nevertheless, because it
appears that the normal appellate processes available post trial
are more than adequate to protect his federal rights, such as,
for example, the ordering of a new trial with the assistance of
experts, Petitioner fails to make a special showing of the need
for this court to adjudicate his claims now.
C. Certificate of Appealability
It is not clear to this court whether a certificate of
appealability ("COA") is necessary in this Section 2241 case.
See, e.g., Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir.
2001) (declining to answer the question of whether a COA is
required in Section 2241 cases involving state prisoner). But
see Hemphill v. Whetsel, 137 Fed.Appx. 191 (10th Cir.
2005) (requiring a COA for a state prisoner who, before his state
trial, filed a section 2241 petition); Greene v. Tennessee
Department of Corrections, 265 F.3d 369 (6th Cir. 2001)
(requiring COA for state prisoner challenging state
administrative order but not his conviction). This uncertainty is
obviated by the fact that the Court of Appeals has discretion to
treat a notice of appeal as a certificate of appealability and
vice versa. In either event, if Petitioner files a notice of
appeal and the Court of Appeals determines that certificate of appealability is needed,
that Court certainly has the discretion to treat the notice of
appeal as a request for a certificate of appealability and act
accordingly. See Slack v. McDaniel, 529 U.S. 473, 483 (2000)
("as AEDPA applied, the Court of Appeals should have treated the
notice of appeal as an application for a COA."); Lozada v.
United States, 107 F.3d 1011, 1017 (2d Cir. 1997) ("we will
treat the notice of appeal as a `request' for a COA"), overruled
on other grounds by, United States v. Perez, 129 F.3d 255,
259-60 (2d Cir. 1997); Fed.R.App.P. 22(b) ("If no express request
for a certificate is filed, the notice of appeal constitutes a
request addressed to the judges of the court of appeals.").
Alternatively, if the Petitioner files a request for a
certificate of appealability, but should have filed a notice of
appeal, the Court has discretion to consider it as such. See,
e.g., United States v. Spencer, 21 Fed.Appx. 803, 804
(10th Cir. 2001) ("We agree that Mr. Spencer's filing of his
COA application constitutes a timely filing of a notice of
appeal.") (citing, Rodgers v. Wyoming Att'y Gen.,
205 F.3d 1201, 1205 (10th Cir. 2000) ("A document, such as ...