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Thomas v. Clarke

United States District Court, E.D. Virginia, Norfolk Division

December 21, 2017

THOMAS SPARKS THOMAS, Petitioner,
v.
HAROLD W. CLARKE, Director of the Virginia Department of Corrections, Respondent.

          UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          Robert J. Krask United States Magistrate Judge

         This matter is before the Court on Thomas Sparks Thomas' pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, and the respondent's motion to dismiss. This matter was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72 of "the Rules of the United States District Court for the Eastern District of Virginia. For the following reasons, the Court RECOMMENDS that respondent's motion to dismiss, ECF No. 11, be GRANTED, and the petition for a writ of habeas corpus, ECF No. 1, be DENIED and DISMISSED WITHOUT PREJUDICE.

         I. STATEMENT OF THE CASE

         Thomas Sparks Thomas ("Thomas") is an Arizona inmate currently in custody and housed with the Arizona Department of Corrections in Florence, AZ. ECF No. 1 at 1, 12. An order attached to Thomas' petition reflects that he currently has criminal charges pending against him in the Circuit Court of the City of Virginia Beach. Id. at 16 (order referencing charges of "possess controlled substance in Case No. CR11-4245 and public intoxication in Case No. CR11-4350").[1] The order also reflects that, on May 24, 2012, the circuit court issued a capias, not yet served or executed, due to Thomas' failure to appear on such charges. Id. While in custody in Arizona, Thomas apparently filed a pro se motion with the circuit court in Virginia Beach seeking to "quash warrants [and dismiss the charges] or in the alternative enter a sentence in absentia [and concurrent with his Arizona sentence]." Id. On February 22, 2016, Judge A. Bonwill Shockley denied Thomas' motion. Id.

         On January 17, 2017, Thomas filed a petition for a writ of mandamus in the Court of Appeals of Virginia naming the Circuit Court of the City of Virginia Beach as respondent, requesting the issuance of "[a] writ... that brings the Petitioner to trial" or the dismissal of the outstanding charges with prejudice.[2] Id. at 14-15. On March 30, 2017, the Court of Appeals of Virginia denied and dismissed the petition on the ground that the action Thomas sought to compel was "not a purely ministerial act subject to mandamus." Id. at 13 (classifying the act of extraditing "out-of-state prisoners [as] not mandated by law"). While noting that the "direct power" to extradite a prisoner to Virginia for trial resided in the Governor, rather than the named circuit court respondent, the Court of Appeals ruled that the extraordinary remedy of mandamus could not be used to compel the performance of a discretionary act. Id. at 13 (noting that Va. Code Ann. "§ 19.2-89 gives the Governor discretion whether to extradite an out-of-state prisoner before his obligation to a foreign state has concluded").[3] Further, the Court of Appeals stated that "the Commonwealth's decision to not pursue extradition under the Code does not constitute a waiver of the Commonwealth's right to prosecute petitioner at a later date." Id. (citing Va. Code Ann. § 19.2-115).[4]

         On April 10, 2017, Thomas filed a petition for a writ of habeas corpus pursuant to section 2254 in the United States District Court for the District of Arizona, along with an application for leave to proceed in forma pauperis. ECF Nos. 1, 2. The petition alleges that Thomas' rights to a speedy trial and to due process have been violated by the Commonwealth's refusal to honor his request for transport to Virginia for trial on the charges pending in circuit court. ECF No. 1 at 1- 2, 4, 6, 11. By order dated April 12, 2017, the court in the District of Arizona granted Thomas' leave to proceed in forma pauperis and transferred his section 2254 petition to this Court. ECF No. 4.

         On June 20, 2017, this Court ordered that the petition be served, that Harold W. Clarke, Director of the Virginia Department of Corrections, be substituted as the sole respondent in place of those originally named by Thomas, and that the respondent file a response to the petition. ECF No. 7. On July 19, 2017, respondent filed an answer to the petition pursuant to Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts and a motion to dismiss the petition, along with a supporting memorandum.[5] ECF Nos. 10-12. On July 31, 2017, Thomas filed a response to respondent's motion to dismiss. ECF No. 14. This matter is fully joined and ready for decision.

         II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

         A. The claims alleged in Thomas' habeas petition are not cognizable under either 28 U.S.C. § 2254 or 28 U.S.C § 2241.

         The petition filed by Thomas seeks relief pursuant to 28 U.S.C. § 2254. ECF No. 1 at 1. Section 2254, however, provides for the filing of a petition by one who is "in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). As noted in Thomas' petition and the documents attached thereto, Thomas is currently an inmate in Arizona serving a sentence in the Arizona Department of Corrections. Id. at 12, 14, 17-18. In his petition, Thomas asserts no challenge, constitutional or otherwise, to any decision by a court in the state of Arizona. See Id. at 1-5. Instead, the petition asserts due process and speedy trial violations allegedly attendant to the Commonwealth's failure to promptly extradite him to Virginia for trial on the charges pending in Virginia Beach. Id. at 1-2, 4, 6, 11. Inasmuch as those charges have yet to be tried, Thomas is not a state prisoner in custody pursuant to a judgment of a Virginia court. Therefore, Thomas' attempt to seek relief pursuant to section 2254 is improper.

         Mindful of the Court's obligation to liberally construe pro se pleadings, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), the Court also considers whether Thomas' petition falls within the scope of 28 U.S.C. § 2241, another vehicle by which state prisoners may seek habeas relief. See In re Wright, 826 F.3d 774, 783 (4th Cir. 2016) (looking beyond label applied by petitioner to determine whether habeas petition properly brought pursuant to section 2254(a)). Section 2241 provides, in pertinent part, that "[t]he writ of habeas corpus shall not extend to a prisoner unless ... (3) [h]e is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Unlike section 2254, section 2241 "'applies to persons in custody regardless of whether final judgment has been rendered and regardless of the present status of the case pending against him.'" United States v. Tootle, 65 F.3d 381, 383 (4th Cir. 1995) (quoting Dickerson v. Louisiana, 816 F.2d 220, 224 (5th Cir. 1987)). Section 2241(c)(3) thus permits a prisoner held in custody in violation of the Constitution or United States law to seek habeas relief in federal court.

         To do so, however, Thomas must also allege grounds to establish that he is being held in custody as a result of such a violation. The facts set forth in Thomas' petition, and the attachments thereto, fail to support such a claim. Instead, they indicate that Thomas is currently an Arizona prisoner serving a sentence imposed by an Arizona court, [6] about which Thomas raises no challenge in the pending petition. See ECF No. 1 at 1-4, 12, 14, 17-18. The record indicates, and Thomas nowhere argues otherwise, that this Arizona conviction gives rise to Thomas' custodial status. Moreover, no information before the Court indicates that Thomas' present custody stems from any decision by Virginia authorities about whether to extradite him to face charges pending in Virginia Beach. Accordingly, even if the Court construed Thomas' petition as one seeking relief pursuant to section 2241, the facts before the Court provide no grounds for concluding that he has alleged a claim that is cognizable under section 2241.[7] For these reasons, the Court recommends that Thomas' petition be dismissed without prejudice.

         B. Even if Thomas' claims were cognizable under section 2241, dismissal is appropriate pursuant to Younger abstention and due to Thomasfailure to exhaust his claims.

         Even if Thomas could assert claims pursuant to section 2241 at this time, dismissal without prejudice is also appropriate on two related and overlapping grounds. The first flows from the decision of the Supreme Court in Younger v. Harris,401 U.S. 37, 41, 45-46 (1971), which recognized that a federal court should not equitably interfere in a state court criminal proceeding, except in the most narrow of circumstances when a petitioner has no adequate remedy at law and will suffer substantial and immediate irreparable injury. Accord Kugler v. Helfant,421 U.S. 117, 123 (1975). Courts examine three factors in deciding whether to apply Younger abstention. Abstention by a federal court is appropriate when (1) "there are ongoing state judicial proceedings;" (2) "the proceedings implicate important state interests;" and (3) "there is an adequate opportunity to raise federal claims in the state ...


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