United States District Court, Eastern District of Pennsylvania
REPORT AND RECOMMENDATION
RICHARD A. LLORET U.S. MAGISTRATE JUDGE
On May 8, 2014, Joseph Tell filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241. Docket No. 1, “Petition.” In the petition he named the Philadelphia District Attorney as defendant. Petition, p. 1. Tell claims that the “prosecution has failed to bring my case to trial within 180 days.” Petition, ¶ 7(a). He also claims that “Pa C.S.A. states a criminal defendant must be brought to trial within 180 days of detention or if prosecution does not the charges must be withdrawn with predudice [sic].” Id. Tell alleges he was arrested September 8, 2013, and that as of the date of his petition (May 8, 2014) “over 240 days have elapsed.” Petition, ¶ 8. Petitioner asks for immediate release. Petition, ¶ 8. In response to a question about whether he had presented his claim to a state or federal court, Tell stated “I have filed 3 600 rule violation petitions with Criminal Justice Center 1301 Filbert Street Rm. 206. . .” Petition, p. 4. The District Court referred this matter to me for a report and recommendation. Docket, No. 2.
A review of Petitioner’s state court docket reveals that on several occasions Mr. Tell’s attorney has requested continuances. Docket in Commonwealth of Pennsylvania v. Joseph Tell, No. CP-51-CR-0013637-2013, Court of Common Pleas of Philadelphia County (“CCP, ” a copy of which is attached as Exhibit “A”), pp. 4-6. The docket also reveals that Mr. Tell moved to have new counsel appointed, on March 17, 2014, and that Tell’s new attorney entered an appearance on March 18, 2014. CCP, p. 6. A status listing was held on April 3, 2014, and a trial scheduled for May 11, 2014. CCP, p. 7. There is no indication from the docket that a trial took place. On and after the date of the last trial readiness conference, April 10, 2014, Mr. Tell filed a number of motions in the trial court that apparently remain unresolved. CCP, p. 7-8. Petitioner’s case is still waiting for trial, and there has been no appeal.
Ordinarily a prisoner must present all of his claims to a state's intermediate appellate courts, as well as to its supreme court,  before a district court may entertain a federal petition for habeas corpus, whether brought under 28 U.S.C. § 2254(b)(1)(A) or § 2241. See Schandelmeier v. Cunningham, 819 F.2d 52, 53 (3d Cir. 1986) (“The state court exhaustion requirement is mandated by statute under 28 U.S.C. § 2254(b) and has developed through decisional law . . . as to claims brought under 28 U.S.C. § 2241”) (citations and internal quotations omitted); Moore v. DeYoung, 515 F.2d 437, 442 (3d Cir.1975) (no distinction between § 2254 and § 2241 “insofar as the exhaustion requirement is concerned”). The Third Circuit explained why:
“[F]ederal habeas corpus does not lie, absent ‘special circumstances, ’ to adjudicate the merits of an affirmative defense to a state criminal charge prior to a judgment of conviction by a state court.” Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 489 (1973). The rule is premised on the notion of comity, a principle of deference and “proper respect” for state governmental functions in our federal system. See Younger v. Harris, 401 U.S. 37, 44 (1971).
Evans v. Court of Common Pleas, Delaware Cnty., Pa., 959 F.2d 1227, 1234 (3d Cir. 1992). “The exhaustion requirement ensures that state courts have the first opportunity to review federal constitutional challenges to state convictions and preserves the role of state courts in protecting federally guaranteed rights.” Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir. 1992).
The exhaustion requirement is satisfied if a claim is “fairly presented” to the state courts. Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). A claim is “fairly presented” when “both the legal theory and the facts supporting a federal claim . . . have been submitted to the state courts.” Lesko v. Owens, 881 F.2d 44, 50 (3d Cir.1989) (citations omitted).
While federal courts have jurisdiction to issue a habeas writ before a judgment issues in a state criminal proceeding, “jurisdiction without exhaustion should not be exercised at the pre-trial stage unless extraordinary circumstances are present.” Moore, 515 F.2d at 441-43 (citations omitted). A petitioner must allege “delay, harassment, bad faith or other intentional activity” in order to establish the “extraordinary circumstances” that would justify pre-exhaustion federal habeas relief. Lambert v. Blackwell, 134 F.3d 506, 517 (3d Cir.1997) (quoting Moore, 515 F.2d at 447 n. 12).
In Moore the Court of Appeals held that a state prisoner had failed to establish “extraordinary circumstances, ” despite the Court’s “distress with the manner in which a state law enforcement office has conducted the proceedings[.]”515 F.2d at 439. Moore, a state prisoner, had been “exposed to state court trial in New Jersey since 1967.” Id. In 1973 Moore filed a federal habeas action seeking the dismissal of his state case on speedy trial grounds. Id. The Court distinguished Braden, in which the Supreme Court had permitted a pre-trial habeas petition based on an alleged speedy trial violation. 515 F.2d at 444, 446. In Braden, unlike Moore, petitioner had exhausted his state remedies, and in Braden the petitioner sought to force the Commonwealth to bring him to trial, rather than to have his case dismissed. 515 F.2d at 444, 446.
The delay in Tell’s case is perfectly ordinary. At least some of it was occasioned by relief sought by Tell or his attorney. The delay is nowhere near as lengthy as the delay considered in Moore, where the Court denied a writ. Tell’s case is “precisely the situation anticipated by the Supreme Court's caveat that federal courts should not permit the claimed denial of a speedy trial, presented in a pre-trial application for habeas, to result in the ‘derailment of a pending state proceeding.’” 515 F.2d at 445-46 (citing to Braden, 410 U.S. at 493).
By order dated July 7, 2014, I required the parties to state a basis for objecting to dismissal of the petition without prejudice by July 21, 2014. Docket, No. 3. No objection has been filed. Petitioner has not exhausted his state remedies, nor do the allegations of his petition establish the “extraordinary circumstances” necessary to avoid the exhaustion requirement.
Accordingly, I make the following:
AND NOW, this 25th day of July, 2014, it is respectfully recommended that Joseph Tell’s petition for habeas corpus ...