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Rojas v. Hillsborough County Superior Court

United States District Court, First Circuit

November 22, 2013

Franky Rojas
v.
Hillsborough County Superior Court, Northern District, and Patricia M. LaFrance, Hillsborough County Attorney.

REPORT AND RECOMMENDATION

LANDYA McCAFFERTY, Magistrate Judge.

Before the court is pro se petitioner Franky Rojas's petition for writ of habeas corpus (doc. no. 1), which cites 28 U.S.C. § 2254 as the source of this court's authority. Rojas is challenging his pretrial detention on a first degree assault charge pending in state court. He seeks immediate release, alleging that the pending prosecution and detention violate his federal rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. The petition is here to determine whether or not Rojas's claims are facially valid and may proceed. See Rule 4 of the Rules Governing Section 2254 cases in the United States District Courts ("§ 2254 Rules").

Discussion

I. Standard

In undertaking § 2254 Rule 4 preliminary review, this court decides whether the petition contains sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face and cognizable in a federal habeas action. See McFarland v. Scott , 512 U.S. 849, 856 (1994) ("Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face."). When a habeas petitioner is proceeding pro se, the assertions contained in the petition are construed liberally. See Erickson v. Pardus , 551 U.S. 89, 94 (2007) (per curiam).

II. Background

Rojas was charged with first degree assault in 1997. In 1998, Rojas failed to appear for a bail hearing in that case, which has remained pending. Rojas was extradited to New Hampshire in 2012 and detained pretrial on the assault charge. Rojas now challenges that detention.

III. Abstention

This court must abstain from considering Rojas's petition, whether construed as filed under 28 U.S.C. § 2241 or under § 2254, [1] as Rojas has not asserted any of the types of claims that would allow this court to interfere with a pending state court prosecution. "Ordinarily, a state criminal case is ripe for the ministrations of a federal habeas court only after completion of the state proceedings (that is, after the defendant has been tried, convicted, sentenced, and has pursued available direct appeals)." Allen v. Att'y Gen. , 80 F.3d 569, 572 (1st Cir. 1996). The two recognized exceptions to that general rule are certain cases involving either a colorable double jeopardy claim challenging the government's right to try the petitioner, or a speedy trial claim where the relief sought is an immediate trial rather than a release from custody. See id.; see also In re Justices of Super. Ct. Dep't of Mass. Trial Ct. , 218 F.3d 11, 18 n.5, 19 (1st Cir. 2000).

Rojas's claims here include a speedy trial claim where the relief sought is immediate release from detention. That claim is not ripe for adjudication, and this court must abstain from considering it at this time. See In re Justices , 218 F.3d at 18 n.5 (when a petitioner, asserting speedy trial act claims, "seeks dismissal of the charges against him, his habeas action must await the conclusion of state proceedings").

Rojas has also cited the Double Jeopardy Clause in his petition. The claim, however, does not actually assert that a trial in the matter for which he is detained would deprive him of any right guaranteed by the Double Jeopardy Clause. Rather, the claim boils down to a statute of limitations claim: an assertion that the first degree assault charge is time-barred, thus preventing the state from trying him on that charge at this time. Claims challenging criminal charges based on alleged statute of limitations violations are not exempt from the general prohibition on pretrial habeas relief. Because no colorable claim in Rojas's petition provides grounds for granting federal habeas relief pretrial, the district judge should abstain from considering the petition and should dismiss this action without prejudice as unripe.[2]

Conclusion

For the foregoing reasons Rojas's petition (doc. no. 1) should be dismissed without prejudice to Rojas filing a timely, proper habeas action if, after the resolution of his criminal case and exhaustion of available state remedies, he asserts that he is in custody in violation of his federal rights. Any objections to this report and recommendation must be filed within fourteen days of receipt of this notice. See Fed.R.Civ.P. 72(b)(2). Failure to file objections within the specified time waives the right to appeal the district court's order. See United States v. De Jesús-Viera , 655 F.3d 52, 57 (1st Cir. 2011); Sch. Union No. 37 v. United Nat'l Ins. Co. , 617 F.3d 554, 564 (1st Cir. ...


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