United States District Court, M.D. Pennsylvania
DAVID F. KELLY BEY, Petitioner
JAMES BECHTOLD, WARDEN, Respondent
RICHARD P. CONABOY United States District Judge.
F. Kelly Bey (Petitioner), an inmate presently confined at
the Franklin County Prison, Chambersburg, Pennsylvania, filed
the above captioned habeas corpus action pursuant to 28
U.S.C. § 2254. The required filing fee has been paid.
as Respondent is Warden James Bechtold of the Franklin County
Prison. Petitioner describes himself as a pretrial
detainee who is being held on orders by the "Franklin
County Adult Probation Pretrial Release Services." Doc.
1 ¶ 3. Kelly Bey's pending action states that he is
challenging the legality of his pretrial detention on the
grounds that the Respondent has failed to comply with the
Pennsylvania Rules of Criminal Procedure.
further asserts that he was unlawfully seized and detained
without a warrant or detainer and denied a "revocation
of release hearing" in violation of his constitutional
rights. .Id. at ¶ 13. Kelly Bey seeks his
immediate release from custody. See id. at
corpus petitions are subject to summary dismissal pursuant to
Rule 4 ("Preliminary Consideration by the Judge")
of the Rules Governing Section 2254 Cases in the United
States District Courts, 28 U.S.C. foil. § 2254 (1977).
See, e.g.. Mutope v. Pennsylvania Board
of Probation and Parole, 2007 WL 846559 *2 (M.D. Pa.
March 19, 2007) (Kosik, J.). Rule 4 provides in pertinent
part: "[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner."
A petition may be dismissed without review of an answer
"when the petition is frivolous, or obviously lacking in
merit, or where. . . the necessary facts can be determined
from the petition itself. ..." Gorko v. Holt,
2005 WL 1138479 *1(M.D. Pa. May 13, 2005)(McClure,
J.)(quoting Allen v. Perini, 424 F.2d 134, 141 (6th
upon Kelly Bey's admission that he has not yet been
convicted or even tried on the state criminal charge
underlying this action, he is clearly a pre-trial detainee.
See Doc. 1, ¶ 10.
pending Petition is apparently challenging the validity of an
ongoing state criminal prosecution or parole revocation.
Although "federal habeas corpus is substantially a
post-conviction remedy, " this Court still has limited
jurisdiction under 28 U.S.C. § 2241(c) (3) to issue a
writ of habeas corpus. See Moore v. DeYoung, 515
F.2d 437, 441 (3d Cir. 1975). However, "jurisdiction
without exhaustion should not be exercised at the pre-trial
stage unless extraordinary circumstances are present."
Id. at 443; see also, Calihan v.
Superior Court, 158 Fed.Appx. 807 (9th Cir. 2005)(absent
special circumstances, "[p]rinciples of comity and
federalism" require abstention from deciding
pre-conviction habeas challenges).
Younger v. Harris, 401 U.S. 37 (1981), the United
States Supreme Court similarly observed that "principles
of federalism and comity require district courts to abstain
from enjoining pending state criminal proceedings absent
extraordinary circumstances." Port Auth. Police
Benevolent Assoc, Inc. v. Port Auth. of N.Y. and N.J. Police
Dep't., 973 F.2d 169, 173 (3d Cir. 1992). The test
for federal court abstention under Younger is
whether "(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."
Id. However, it is only when a habeas petitioner
faces the threat of suffering irreparable harm that federal
court intervention will be justified. See Dombrowski v.
Pfister, 380 U.S. 479, 482 (1965); Coruzzi v. State
of N.J., 705 F.2d 688, 690 (3d Cir. 1983).
"[i]n 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." Evans v. Court of Common Pleas,
959 F.2d 1227, 1234 (3d Cir. 1992). It has also been noted
that the habeas corpus remedy afforded to state inmates under
§ 2254 was not intended "to argue state law issues
pre-trial in a federal forum." Green v. Commonwealth
of Pennsylvania, No. CIV. A. 93-1662, 1993 WL 239311, at
*3 (E.D. Pa. June 28, 1993).
Court of Appeals for the Third Circuit in Moore
addressed a denial of speedy trial claim. It concluded that
extraordinary circumstances did not exist to permit
adjudication of the claim because the applicant "will
have an opportunity to raise his claimed denial of the right
to a speedy trial during his state trial and any subsequent
appellate proceedings in the state courts."
Moore, 515 F.2d at 449.
are no assertions in Kelly Bey's pending petition which
show that he cannot litigate the merits of his present
allegations in his ongoing state criminal proceeding, or
thereafter (if necessary) ...