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Everette v. Warden of Dauphin County

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


April 12, 2010

KEVIN C. EVERETTE, PETITIONER
v.
WARDEN OF DAUPHIN COUNTY, ET AL., RESPONDENTS

The opinion of the court was delivered by: Judge Rambo

MEMORANDUM

Kevin C. Everette ("Everette"), an inmate presently confined at the Dauphin County Prison in Harrisburg, Pennsylvania, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging ongoing state criminal proceedings in the Court of Common Pleas of Dauphin County. (Doc. 1.) This petition has been given preliminary consideration and, for the reasons set forth below, the court will dismiss this action without prejudice because there are ongoing state court criminal proceedings. See R. Governing § 2254 Cases R.4.*fn1

I. Background

Everette was arrested and charged in state court with rape and related offenses on March 27, 2007. (Doc. 1 at 1.) His case has not yet gone to trial. (Id.) An electronic search of Pennsylvania's Unified Judicial System webportal confirms that Everette's case is still pending before the Dauphin County court.*fn2 Commonwealth v. Everette, CP-22-CR-0002463-2007. On February 22, 2010, a pretrial hearing was held to address evidence to be presented at trial. Id. Further, several continuances have been granted. Id. The latest continuance until August 9, 2010 was granted on March 24, 2010. Id. As a result, Everette remains in custody on the pending state court charges. In the instant petition, it is Everette's contention that because he remains in state custody and has not been tried in state court, the state charges should be dismissed and he should be released. (Doc. 1 at 2.)

II. Discussion

The doctrine of abstention which has developed since Younger v. Harris, 401 U.S. 37 (1971), "espouse[s] a strong federal policy against federal-court interference with pending state judicial proceedings absent extraordinary circumstances."

Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 431 (1982). "Younger abstention," as the Court's teaching is known, "is premised on the notion of comity, a principle of deference and 'proper respect' for state governmental functions in our federal system." Evans v. Court of Common Pleas, Delaware County, Pa., 959 F.2d 1227, 1234 (3d Cir. 1992). Comity concerns are especially heightened when the ongoing state governmental function is a criminal proceeding. Id. ("In no area of the law is the need for a federal court to stay its hand pending completion of state proceedings more evident than in the case of pending criminal proceedings.")

The specific elements that warrant abstention are that "(1) there are ongoing state proceedings that are judicial in nature; (2) the state proceedings implicate important state interests; and (3) the state proceedings afford an adequate opportunity to raise federal claims." Schall v. Joyce, 885 F.2d 101, 106 (3d Cir. 1989). All three elements are present in this case. First, Everette's claim concerns an ongoing criminal case pending in the Commonwealth of Pennsylvania. Second, based upon the fact that he is seeking to dismiss the charges for lack of a speedy trial, this proceeding clearly implicates important state interests. Third, the presence of pretrial motions filed on behalf of Everette by his counsel of record and proceedings in the state court addressing pretrial issues demonstrates that he has and will have an adequate opportunity to raise any federal issues in the state forum. As a result, this court may assume that the state procedures will afford an adequate remedy.*fn3 See Kelm v. Hyatt, 44 F.3d 415, 420 (6th Cir. 1995) (citing Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 17 (1987) ("Initially, we must presume that the state courts are able to protect the interests of the federal plaintiff.").

III. Conclusion

Under the present circumstances, the court concludes that it is appropriate to abstain from entertaining the petition. Accordingly, the petition will be dismissed without prejudice. Further, the court finds there is no basis for the issuance of a certificate of appealability. See 28 U.S.C. § 1153(c).

ORDER

In accordance with the accompanying memorandum, IT IS HEREBY ORDERED THAT:

1) The petition for writ of habeas corpus (Doc. 1) is DISMISSED without prejudice.

2) The Clerk of Court is directed to CLOSE this case.

3) There is no basis for the issuance of a certificate of appealability. See 28 U.S.C. § 2253(c).

Sylvia H. Rambo United States District Judge


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