United States District Court, Eastern District of Pennsylvania
REPORT & RECOMMENDATION
TIMOTHY R. RICE U.S. MAGISTRATE JUDGE
Petitioner Razzaaq Miller, a prisoner in the Curran-Fromhold Correctional Facility in Philadelphia, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241. I recommend Miller’s petition be dismissed with prejudice as non-cognizable.
On December 12, 2003, Miller was convicted of carrying firearms without a license and related offenses. Commonwealth v. Miller, CP-51-CR-1005171-2003, (“gun case”) Crim. Docket at 2, 4. On July 29, 2004, he was sentenced to 36-to-72 months incarceration and three years probation. Id. at 8. On May 16, 2005, the Pennsylvania Superior Court affirmed. 2403 EDA 2004 at 3. On December 1, 2005, the Pennsylvania Supreme Court denied review. Id. The docket shows that, at some point, Miller violated his probation and a detainer was lodged against him. Gun Case Docket at 12. On May 23, 2011, the trial court continued a hearing on the violation. Id. As of April 30, 2012, no date for that hearing had been set. Id.
On January 13, 2012, Miller was arrested for firearm and drug offenses. Commonwealth v. Miller, CP-51-CR-3856-2012, (“drug case”) Crim. Docket at 1-3; Comwlth. Resp. (doc. 24) at 1. On February 2, 2012, the case was continued because Miller’s attorney had a different hearing to attend. Commonwealth v. Miller, MC-51-CR-1973-2012, Crim. Docket at 4. On March 27, 2012, some of Miller’s charges were dismissed due to lack of evidence. Id.
On May 15, 2012, Miller’s attorney failed to appear for a pretrial conference, which resulted in a continuance. Drug Case Docket at 5. On May 22, 2012, Miller’s counsel sought a continuance for further investigation. Id. At a May 29, 2012 pretrial conference, Miller rejected the Commonwealth’s plea offer and the case was listed for trial and possible motions. Id.; Comwlth. Resp. at 2. On June 19, 2012, Miller’s attorney stated Miller had been dissatisfied with his performance and Miller had been thinking about retaining a different attorney, which resulted in another continuance until July 12, 2012. Comwlth. Resp. at 3. During a July 12, 2012 scheduling conference, it was noted that Miller’s counsel would remain and the case was again listed for trial. Drug Case Docket at 6.
On October 25, 2012, the trial court granted Miller’s motion to continue when a witness failed to appear. Id. On November 16, 2012, the court did not have a sheriff available to bring Miller to court, therefore, the case was relisted and the time was ruled excludable. Id.; Comwlth. Resp. at 3. Another continuance was granted on January 4, 2013, after Miller’s counsel filed a motion to withdraw due to a conflict. Drug Case Docket at 7; Comwlth. Resp. at 3.
Miller then filed several pro se motions, including a May 2, 2013 motion to compel, a September 6, 2013 motion to quash, and a December 10, 2013 motion to dismiss pursuant to Pennsylvania’s Rule of Criminal Procedure 600. Drug Case Docket at 7-9. In the meantime, on December 10, 2013, the trial court granted Miller’s counsel’s advance request for a continuance. Id. at 7. On the same date, the trial court denied Miller’s motion to quash and Rule 600 motion because every continuance was due to the defense’s request and the prosecution was never unprepared. Id. at 8; Comwlth. Resp. at 3-4. The case is currently listed for a pretrial conference on November 3, 2014, and a three-day trial beginning on November 5, 2014. Drug Case Docket at 9. On January 28, 2014, Miller filed an amended motion to dismiss pursuant to Rule 600, which is still pending. Id.
On December 31, 2013, Miller filed his habeas petition, alleging: (1) he is being held pursuant to a detainer that expired on November 27, 2012; and (2) a violation of his right to a speedy trial. Habeas Pet. (doc. 1) at 3-4.
It is unclear when Miller was released. On April 16, 2014, however, Miller was arrested for attempted murder and related offenses. Commonwealth v. Miller, CP-51-CR-5820-2014, Crim. Docket at 1. On May 20, 2014, he was held for court. Id. at 4. On June 9, 2014, a hearing notice was docketed. Id.
On June 10, 2014, the Commonwealth responded to Miller’s habeas petition, arguing that his claims are unreviewable, meritless, and/or unexhausted. Comwlth. Rep. at 1, 4. On June 26, 2014, Miller filed a reply brief. Habeas Reply (doc. 29).
Federal courts may issue a writ of habeas corpus to a prisoner who “is in custody in violation of the Constitution or laws or treaties of the United States” before a judgment has been rendered. § 2241(c)(3); see also Moore v. deYoung, 515 F.2d 437, 443 (3d Cir. 1975) (courts have pretrial habeas corpus jurisdiction under § 2241). A prisoner first must exhaust his claims in state court. See Braden v. 30th Judicial Circuit Ct. of Ky., 410 U.S. 484, 489-92 (1973); Moore, 515 F.2d at 442 (no distinction between required exhaustion in § 2241 and § 2254 claims). “[S]tate prisoners must give the state courts one full opportunity to resolve constitutional issues by invoking one complete round of the State’s established appellate review process.” O'Sullivan v. Boerkel, 526 U.S. 838, 845 (1999).
The petitioner bears the burden of establishing exhaustion. Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000) (citing Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997)). Exhaustion may be excused only if “extraordinary circumstances are present.” Moore, 515 F.2d at 443. An alleged speedy trial violation is not an “extraordinary circumstance” that requires ...