The opinion of the court was delivered by: Judge Caldwell
On December 23, 2010, the pro se petitioner, Jeremy Dickens, a pre-trial detainee at the Dauphin County Prison in Harrisburg, Pennsylvania, filed this petition for a writ of habeas corpus. Petitioner complains that he was refused counsel at his preliminary hearing in violation of the Sixth Amendment and a stenographer to record the proceedings in violation of his rights under the Fourteenth Amendment. The petition has been given preliminary consideration and will be dismissed without prejudice for failure to exhaust state-court remedies.*fn1
On June 4, 2010, Dickens was arrested by the Harrisburg Police
for criminal use of a communications facility, flight to avoid
apprehension, escape, theft, and various drug offenses. These charges
are pending in the Court of Common Pleas of Dauphin County,
Pennsylvania.*fn2 Petitioner alleges that on July 27,
2010, while incarcerated, he "was awakened and called for a
preliminary hearing." (Doc. 1, Pet. at CM/ECF p. 3).*fn3
He was required to attend that hearing without notice or the
assistance of counsel. His requests for counsel, postponement to
obtain counsel, and a stenographer were all denied. Id. On November
30, 2010, Dickens filed in the trial court a Motion to Quash Return of
Transcript and/or Petition for Writ of Habeas Corpus. On December 14,
2010, the court denied the motion. Id. at 7. Dickens's trial was
scheduled for January 24, 2011.
Typically, a federal court will entertain a request for habeas relief after the state-court judgment is entered, and do so under 28 U.S.C. § 2254, but we also have authority under 28 U.S.C. § 2241(c)(3) to grant habeas relief before a judgment is entered in the state-court criminal proceedings. See Moore v. DeYoung, 515 F.3d 437, 441-42 (3d Cir. 1975). See also Duran v. Thomas, 393 F. App'x 3, 2010 WL 3374095, at *2 (3d Cir. 2010)(per curiam)(nonprecedential)(quoting Moore); Chambers v. DeRose, No. 10-2070, 2010 WL 4623897, at *2 (M.D. Pa. Nov. 5, 2010).
A section 2241 petitioner seeking to invoke our "pretrial" habeas jurisdiction must have exhausted state-court remedies and must also make "a special showing of the need" for us to adjudicate his petition at such an early juncture. Moore, 515 F.2d at 443. If he has not exhausted his remedies, we may still adjudicate his petition if there are "extraordinary circumstances." Id.
It is obvious that Petitioner has not exhausted his state-court remedies. He was scheduled to go to trial just two days ago, January 24, 2011, so he could not possibly have completed a direct appeal yet, in which he could have argued his claims, if convicted. See, e.g., Commonwealth v. Carver, 292 Pa. Super. 177, 436 A.2d 1209 (1981)(considering on direct appeal the defendant's claim that he was denied the right to counsel at his preliminary hearing); Commonwealth v. Dean, 348 Pa. Super. 1, 501 A.2d. 269 (1985)(considering on direct appeal the defendant's claim that he was denied a transcript of his preliminary hearing).
We can therefore only consider his petition if there are extraordinary circumstances. Those circumstances are absent here. The preliminary hearing in Pennsylvania is a critical stage of the criminal proceedings, and so a defendant has a Sixth Amendment right to counsel at the hearing. Ditch v. Grace, 479 F.3d 249, 253 (3d Cir. 2007). However, denial of counsel does not infect the entire proceedings so that a defendant is entitled to automatic vacatur of a conviction. Id. at 254. Instead, it is subject to harmless error analysis. Id. at 255. This analysis can be pursued by way of exhaustion of state-court remedies and hence does not constitute extraordinary circumstances. Moore, 515 F.2d at 446-47 (denial of a speedy trial standing alone is not an extraordinary circumstance requiring adjudication of a pretrial habeas petition when the petitioner has state-court remedies available); Chambers, supra, 2010 WL 4623897, at *3 (same).
We will issue an appropriate order.
William W. Caldwell United States District Judge
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT ...