Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Potter v. Mack

United States District Court, S.D. Alabama, Southern Division

March 15, 2018

DONNIE D. POTTER, Petitioner,
v.
HUEY HOSS MACK[1], Respondent.

          REPORT AND RECOMMENDATION

          KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE.

         Petitioner Donnie Wayne Potter (“Potter”), a state pretrial detainee, housed in the Baldwin County Jail, has filed a petition seeking habeas corpus relief pursuant to 28 U.S.C. § 2241. (Doc. 5). This matter has been referred to the undersigned for the entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and General Local Rule 72(a)(2)(R). It is recommended that Potter's action be DISMISSED without prejudice, prior to service, to afford him an opportunity to exhaust all available state remedies.

         FINDINGS OF FACT

         Piecing together Potter's allegations, it seems he has been incarcerated in the Baldwin County Correctional Facility since February 13, 2017. (Doc. 1 at 2). He states that he is being held on “felony simple possession of a controlled substance.” (Id. at 4). Potter's initial filing, dated November 9, 2017, was styled as a “motion to compel.” (Doc. 1). Because Petitioner is a pretrial detainee, who appeared to be in the custody of the State of Alabama, Petitioner was ordered to re-file his petition pursuant to 28 U.S.C. § 2241. (Doc. 5). Petitioner has done so and Doc. 5 is now the operative petition in this action.

         Potter claims that the state dropped several charges against him in March 2016 but are “bringing them back up” in response to the motion he filed in this Court. (Doc. 5 at 2). Potter claims that he has been in custody for 10 months, while individuals with more severe charges are receiving shorter sentences and that he has tried to plead guilty but that his attorney and the district attorney's office will not permit him to do so. (Id. at 2-3).

         As a result of these alleged wrongs, Potter seeks several types of relief. He requests that this Court investigate his case, to dismiss his case, to dismiss his attorney[2], and for this Court to grant him bond. It appears that he is attempting to have the charges against him dismissed and possibly to enforce his right to a speedy trial, as he points to the length of time he has been in custody without adjudication of his case.

         CONCLUSIONS OF LAW

         A district court has the power under Rule 4 of the Rules Governing Section 2254 Cases “to examine and dismiss frivolous habeas petitions prior to any answer or other pleading by the state.” Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999); Jackson v. Secretary for the Department of Corrections, 292 F.3d 1347, 1349 (11th Cir. 2002)(“[W]e hold that the district court possessed the discretion to raise sua sponte the timeliness issue.”); Hill v. Braxton, 277 F.3d 701, 705 (4th Cir. 2002) (“Even though the limitations period is an affirmative defense, a federal habeas court has the power to raise affirmative defenses sua sponte, as the district court did in this case.”). Rule 4 provides, in pertinent part, that “[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.” 28 U.S.C. foll. § 2254, Rule 4.

         Considering the petition under § 2241, “[a]n initial question is whether [Potter] has any right to invoke federal habeas corpus in view of the fact he has not yet been tried....” Brown v. Estelle, 530 F.2d 1280, 1282-83 (5th Cir.1976).[3] The Fifth Circuit has explained:

The answer is provided in large part by the Supreme Court's decision in Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). The Court there reiterated the long established principle that “federal 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.” Id. at 490, 93 S.Ct. at 1127, 35 L.Ed.2d at 449. The Court held, however, that there was an important distinction between a petitioner who seeks to “abort a state proceeding or to disrupt the orderly functioning of state judicial processes” by litigating a speedy trial defense to a prosecution prior to trial, and one who seeks only to enforce the state's obligation to bring him promptly to trial. See Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). This distinction apparently turns upon the type of relief sought: an attempt to dismiss an indictment or otherwise prevent a prosecution is of the first type, while an attempt to force the state to go to trial is of the second. While the former objective is normally not attainable through federal habeas corpus, the latter is, although the requirement of exhaustion of state remedies still must be met. See Tooten v. Shevin, 493 F.2d 173 (5th Cir.1974), cert. denied, 421 U.S. 966, 95 S.Ct. 1957, 44 L.Ed.2d 454 (1975).

Brown, 530 F.2d at 1282-83.

         To the extent Potter is seeking to have the charges dismissed or to adjudicate the merits of affirmative defenses to the charge prior to a judgment of conviction, his petition is due to be dismissed. As the Supreme Court made clear in Braden v. 30th Judicial Circuit Court of Kentucky, this type of relief is not available through federal habeas corpus. 410 U.S. 484, 93 S.Ct. 1123 (1973).

         With regard to the other types of relief sought, provided two requirements are satisfied, a state pretrial detainee like Potter can raise constitutional claims in a habeas corpus petition filed pursuant to 28 U.S.C. § 2241. See, e.g., Robinson v. Hughes, 2012 WL 255759, *2 (M.D. Ala. Jan. 5, 2012), report and recommendation adopted, 2012 WL 253975 (M.D. Ala. Jan. 27, 2012). First, the petitioner must be “in custody, ” albeit “not pursuant to the final judgment of a state court [, ]” id., citing Dickerson v. Louisiana, 816 F.2d 220, 224 (5th Cir. 1987); 28 U.S.C. § 2241(c), and, second, he “must have exhausted his available state remedies.” Id.; see Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 488-489 & n.4, (1973)(finding petitioner had satisfied § 2241(c)(3) 's “in custody” requirement and that he had exhausted “all available state remedies as a prelude to this action.”).

         When Potter filed his petition, he was incarcerated in the Baldwin County Correctional Facility awaiting trial on charges arising in Baldwin County, Alabama. Therefore, he satisfied the “in custody” requirement for purposes of § 2241 at the time the petition was filed. However, the undersigned has reviewed the AlaCourt[4] filings in Potter's relevant state court cases[5] and it appears he may have been released on bond in early March 2018 and is scheduled to appear before a Baldwin County District Court judge on March 22, 2018.[6] Even if Potter has been released on bond, he meets the in custody requirement as the state still exercises some of control over the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.