Holloway v. USA et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Dale E. Holloway, Jr.
v. 	Case No. 21-cv-456-JD
State of New Hampshire et al. 1
REPORT AND RECOMMENDATION
Before the court is N.H. State Prison inmate Dale E.
Holloway, Jr.’s petition for a writ of habeas corpus (Doc. No.
1), filed under 28 U.S.C. § 2241, challenging his pretrial
detention at the Hillsborough County Department of Corrections
(“HCDOC”). 	The matter is here to determine whether the claims
raised in the petition are facially valid and may proceed. 	See
28 U.S.C. § 2243; Rule 4 of the Rules Governing Section 2254
cases (“§ 2254 Rules”); § 2254 Rule 1(b); LR 4.3(d)(4)(A).
§ 2254 Rule 4 Review Standard
A judge is required to promptly examine any petition for
habeas relief, and if “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.” 	§ 2254 Rule 4. 	“Federal courts are authorized to
1 The proper respondent in this action is Mr. Holloway’s
current custodian, the Warden of the N.H. State Prison.
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dismiss summarily any habeas petition that appears legally
insufficient on its face.” 	McFarland v. Scott, 512 U.S. 849,
856 (1994). 	The court construes Mr. Holloway’s pleadings
liberally, in light of his pro se status. 	See Dutil v. Murphy,
550 F.3d 154, 158 (1st Cir. 2008).
Background
When Mr. Holloway filed this petition, he was in pretrial
detention for two criminal cases that were then pending in New
Hampshire state courts, State v. Holloway, No. 226-2019-cr-814
(N.H. Super. Ct., Hillsborough Cty.-S.D.) (“Holloway I”), and
State v. Holloway, No. 216-2019-cr-1856 (N.H. Super. Ct.,
Hillsborough Cty.-N.D.) (“Holloway II”).
Holloway I is still pending in the state Superior Court.
In that case, Mr. Holloway is charged with attempted murder,
assault, and being a felon in possession of a firearm, arising
from a shooting at a church in Pelham, New Hampshire. 	Mr.
Holloway has been held without bail in pretrial detention in
Holloway I since October 2019. 	Mr. Holloway filed a state
“Petition for Writ of Habeas Corpus” in Holloway I, seeking
release on personal recognizance, asserting that his detention
violated his due process rights. 	The Superior Court denied that
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petition on May 11, 2021 after a hearing. 2 	Mr. Holloway is
presently representing himself in Holloway I, and the Superior
Court has appointed an attorney to serve as standby counsel as
to procedural or evidentiary matters. 3 	Jury selection in
Holloway I is scheduled for January 24, 2022. 4
In Holloway II, Mr. Holloway was charged with, and then
convicted of, assaulting the attorney who had been representing
him in Holloway I, while they were meeting at the HCDOC in
October 2019. 	On May 27, 2021, Mr. Holloway pleaded guilty in
Holloway II and was sentenced to serve 7½ to 15 years in prison. 5
Mr. Holloway is presently serving that sentence at the N.H.
State Prison. 	See July 6, 2021 Change of Address (Doc. No. 6).
Before pleading guilty in Holloway II, Mr. Holloway had
filed a state habeas petition in the N.H. Supreme Court
(“NHSC”), under NHSC Rule 11, challenging the legality of his
2 May 11, 2021 Order, Holloway I,
https://www.courts.state.nh.us/caseinfo/pdf/Holloway/051121Hollo
way-order.pdf (last visited June 17, 2021).
3 July 14, 2021 Order on Standby Counsel, Holloway I,
https://www.courts.state.nh.us/caseinfo/pdf/Holloway/071421Hollo
way-order.pdf 	(last visited July 28, 2021).
4 July 14, 2021 Case Structuring Order, Holloway I,
https://www.courts.state.nh.us/caseinfo/pdf/Holloway/071421Hollo
way814-order2.pdf (last visited July 28, 2021).
5 May 27, 2021 Sentencing Order, Holloway II,
https://www.courts.state.nh.us/caseinfo/pdf/Holloway/052721Hollo
way1856-sentsheet.pdf (last visited June 17, 2021).
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Holloway I and Holloway II indictments and detention orders.
The NHSC denied that petition on April 15, 2021. 6
In the instant § 2241 petition, Mr. Holloway claims that he
was detained pretrial in Holloway II in violation of his
Fourteenth Amendment right to due process, that the conditions
of his confinement at the HCDOC amounted to abuse and neglect,
that his right to a speedy trial in both Holloway I and Holloway
II has been denied, and that the trials in those cases will
place him in jeopardy twice in violation of the Double Jeopardy
Clause. 	In his petition here, Mr. Holloway seeks a hearing,
release from confinement, dismissal of his state indictments,
and temporary restraining orders (“TROs”) directed at specific
state judges, the Hillsborough County Attorney’s Office, the
Hillsborough County Sheriff’s Department, and the N.H. Attorney
General’s Office, ordering them to prevent the HCDOC from
abusing or neglecting Mr. Holloway. 7
6 In re Holloway, No. 2021-0054 (N.H. Apr. 15, 2021),
https://www.courts.state.nh.us/caseinfo/pdf/Holloway/041521Hollo
waySCT-Order.pdf (last visited June 17, 2021).
7 Mr. Holloway previously filed a petition for a writ of
habeas corpus in federal court under 28 U.S.C. § 2241, asserting
similar claims. 	See Holloway v. Hillsborough Cty. Dep’t of
Corr., No. 21-cv-205-PB (D.N.H.). 	The court dismissed that
petition on April 1, 2021 for lack of exhaustion of state
remedies. 	See Apr. 1, 2021 Order, id. (ECF No. 5).
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Discussion
I. 	Bail Reform Act and the United States
Mr. Holloway has cited the Bail Reform Act, 18 U.S.C.
§ 3142, as the authority for filing his habeas petition, and he
has named the United States as a respondent in this case. 	The
Bail Reform Act authorizes the pretrial detention of defendants
in federal criminal cases. 	The United States is not Mr.
Holloway’s custodian, and no federal court has issued any
detention order affecting Mr. Holloway. 	Accordingly, the Bail
Reform Act’s provisions do not apply, and claims intended to
arise under that authority should be dismissed. 	In addition,
the United States is not properly identified as a respondent in
this case and should be dropped as a party.
II. 	Claims Challenging HCDOC Conditions
Mr. Holloway’s transfer to the N.H. State Prison has mooted
all of his claims for injunctive relief challenging the
conditions of his confinement at the HCDOC. 	See Ford v. Bender,
768 F.3d 15, 29 (1st Cir. 2014) (except where damages are
sought, “[a] prisoner’s challenge to prison conditions or
policies is generally rendered moot by his transfer or release,”
as “‘he no longer has a legally cognizable interest in a
judicial decision on the merits of his claim’” (citation
omitted)). 	Accordingly, Mr. Holloway’s claims challenging the
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HCDOC conditions, including his abuse-and-neglect claims and his
request for TROs or other injunctive relief to address those
claims, are properly dismissed from this action, without
prejudice to his ability to assert similar claims for damages in
a civil rights complaint.
III. Claims Relating to Holloway II
When Mr. Holloway filed this petition, he remained in
pretrial detention at the HCDOC pursuant to orders issued in
both Holloway I and Holloway II. 	After filing this petition,
Mr. Holloway pleaded guilty in Holloway II and was transferred
to the N.H. State Prison to serve the sentence imposed in that
case. 	A petitioner’s conviction moots the petition he filed
under § 2241 challenging his pretrial detention. 	“If a
petitioner ‘is now held as a convicted defendant rather than
merely on a criminal charge not yet brought to trial, the issue
as to the legality of his continued pretrial detention has been
mooted.’” 	Gonzales v. United States, 765 F. App’x 420, 421
(10th Cir. 2019) (citation omitted). 	Accordingly, the district
judge should dismiss all of Mr. Holloway’s claims challenging
the validity of his pretrial confinement in Holloway II in light
of his conviction in that case.
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IV. 	Claims Relating to Holloway I
A. 	Younger Abstention
Mr. Holloway has asserted Fourteenth Amendment due process
claims, Sixth Amendment fair trial and speedy trial claims, and
Fifth Amendment double jeopardy claims, all challenging the
validity of his prosecution and pretrial detention in Holloway
I. 	Under Younger v. Harris, 401 U.S. 37 (1971), absent
extraordinary circumstances, federal courts must generally
abstain from considering the merits of federal constitutional
claims asserted by state criminal defendants seeking to enjoin a
state criminal prosecution, or to obtain a declaratory judgment
that could affect ongoing state criminal prosecutions. 	See
Sirva Relocation, LLC v. Richie, 794 F.3d 185, 192 (1st Cir.
2015); see also Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72
(2013); Doe v. Donovan, 747 F.2d 42, 44 (1st Cir. 1984).
Because “a pending state prosecution provides the accused a
fair and sufficient opportunity for vindication of federal
constitutional rights,” Kugler v. Helfant, 421 U.S. 117,
124 (1975), federal courts may intervene only in
“extraordinary circumstances,” Younger, 401 U.S. at 53,
such as when the prosecution is done in bad faith or to
harass or when the state criminal law is flagrantly
unconstitutional, see id. at 53-54
Patton v. Bonner, No. 20-5531, 2021 U.S. App. LEXIS 10080, at
*3-4, 2021 WL 2026933, at *2 (6th Cir. Apr. 7, 2021). 	Here, the
ongoing Holloway I prosecution satisfies the prerequisites for
Younger abstention, as the state criminal prosecution remains
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pending, resolution of the charged criminal offenses necessarily
implicates important state interests, and Mr. Holloway has not
alleged facts indicating that the state courts have not or will
not provide him the opportunity to advance his federal rights in
that case.
“With only two exceptions to date,” namely, (1) credible
claims of double jeopardy violations and (2) claims of speedy
trial violations if the relief requested is an immediate trial,
“the federal courts have routinely rejected petitions for
pretrial habeas relief raising any variety of claims and
issues,” on the basis of Younger abstention. 	In re Justices of
the Super. Ct., 218 F.3d 11, 17-18 & n.5 (1st Cir. 2000)
(footnote omitted) (citing, inter alia, Allen v. Att’y Gen’l, 80
F.3d 569, 572 (1st Cir. 1996) (federal habeas petition that
raises “a colorable claim of former jeopardy” need not
invariably await trial and conviction); see also Graham v.
Maine, No. 2:20-cv-00315-JDL, 2020 U.S. Dist. LEXIS 184185, at
*3, 2020 WL 6811492, at *1 (D. Me. Oct. 5, 2020) (“‘[c]ourts
have consistently applied the Younger doctrine to dismiss habeas
claims by pretrial detainees based on excessive bail, claims of
actual innocence, or due process violations, absent bad faith,
harassment, or [other] extraordinary circumstances’” (citation
omitted)), R&R approved, 2020 U.S. Dist. LEXIS 243246, 2020 WL
7753684 (D. Me. Dec. 29, 2020).
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Here, the relief requested in Mr. Holloway’s petition is
dismissal of the charges and release from custody, not an
immediate trial. 	His speedy trial claims, seeking dismissal of
charges, are properly dismissed under Younger, see In re
Justices, 218 F.3d at 17-18 n.5. 	And the double jeopardy claims
in the petition, which arise from the prospect of a trial in
Holloway I following Holloway II, is not the type of “credible”
or “colorable” double jeopardy claim arising from a threat of
being twice put in jeopardy for the same offense, that could
warrant finding an exception to Younger abstention to be
applicable here. 	See In re Justices, 218 F.3d at 17-18 n.5;
Allen, 80 F.3d at 572; Doe, 747 F.2d at 44.
The few remaining extraordinary circumstances -- where
abstention is not required – include: state proceedings brought
in bad faith or for purposes of harassment, cases in which the
state forum provides inadequate protection of federal rights,
and circumstances where the state statute at issue in the
proceedings is “‘flagrantly and patently violative of express
constitutional prohibitions.’” 	Sirva Relocation, 794 F.3d at
192 (citations omitted). 	Mr. Holloway has pleaded no facts
suggesting that any exceptions to Younger abstention are
applicable to his claims. 	Accordingly, the district judge
should abstain from ruling on the claims Mr. Holloway has
asserted here.
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B. 	Exhaustion
The exhaustion requirement that courts generally apply to
§ 2241 petitions provides a separate basis for dismissing Mr.
Holloway’s claims concerning Holloway I. 	Inmates in state
custody, including inmates in pretrial detention, must exhaust
their state remedies before seeking federal habeas relief. 	See
Bancroft v. Massachusetts, 525 F. Supp. 2d 237, 241 (D. Mass.
2007); see also Timms v. Johns, 627 F.3d 525, 530-31 (4th Cir.
2010). 	To satisfy that requirement,
a petitioner must “raise all claims in state court
prior to raising them in a federal habeas corpus
petition,” and, in doing so, “‘fairly present’ each
claim for habeas relief in ‘each appropriate state
court (including a state supreme court with powers of
discretionary review), thereby alerting that court to
the federal nature of the claim.’” 	Put otherwise,
petitioner “must give the state courts one full
opportunity to resolve any constitutional issues by
invoking one complete round of the State’s established
appellate review process.”
McPherson v. Lamont, 457 F. Supp. 3d 67, 76 (D. Conn. 2020)
(citations omitted). 	The exhaustion requirement may be deemed
satisfied in New Hampshire when the NHSC has had one full, “fair
opportunity” to correct the claimed constitutional error, either
in the context of a direct appeal or in a collateral review
proceeding. 	See Lanigan v. Maloney, 853 F.2d 40, 42 (1st Cir.
1988) (internal quotation marks and citation omitted).
Mr. Holloway filed a petition for habeas relief in the
state Superior Court in Holloway I, asserting due process claims
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challenging his pretrial detention in that case, resembling the
federal constitutional claims he has asserted in this case. 	The
Superior Court in Holloway I denied that petition after a
hearing. 	As Holloway I remains pending, Mr. Holloway has not
yet provided the state’s highest court a fair opportunity to
review those issues.
Mr. Holloway’s filings in the NHSC in February through
April 2021, predating the Superior Court’s pertinent May 11,
2021 Order on his state habeas petition, do not appear to have
exhausted his state remedies on the claims pending here. 	The
NHSC construed those filings collectively as a Rule 11 state
habeas petition, and then summarily denied relief, applying the
standard under NHSC Rule 11, which states that relief will be
granted on such petitions only “when there are special and
important reasons for doing so.” 	NHSC R.11(1). 	Absent a
showing that the NHSC in fact ruled on the merits of those
claims or that he is now otherwise barred under state law from
litigating the same claims in a direct appeal or in other state
collateral proceedings, the record here does not demonstrate
that his prior Rule 11 filings exhausted his state remedies on
those claims. 	See Castille v. Peoples, 489 U.S. 346, 351 (1989)
(inmate had not demonstrated exhaustion of state remedies merely
by listing his federal claims in state petition addressed
directly to state’s highest court, bypassing any proceedings in
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the lower state courts, where state’s highest court had
summarily denied inmate’s petition and its rules allowed for
such petitions to be granted only for special and important
reasons); see also Morehouse v. Cunningham, No. 98-304-M, 1999
WL 813917, at *3 (D.N.H. Apr. 9, 1999) (petitioner’s Rule 11
petition for original review in the NHSC “did not fairly present
[petitioner’s] claims to the state courts for exhaustion
purposes”). 	Here, as in Castille, the NHSC’s order denying the
Rule 11 petition does not, standing alone, provide a basis for
finding that the claims at issue have been exhausted.
Furthermore, Mr. Holloway has not demonstrated that any
exception to the exhaustion requirement is applicable here. 	Cf.
Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994) (“‘[e]xceptions
to the exhaustion requirement are appropriate where . . .
remedies either are unavailable or wholly inappropriate to the
relief sought, or where the attempt to exhaust such remedies
would itself be a patently futile course of action’” (citation
omitted)); Cuevas v. Pennsylvania, No. 1:19-CV-1733, 2020 U.S.
Dist. LEXIS 68609, at *10, 2020 WL 1911511, at *3 (M.D. Pa. Apr.
20, 2020) (declining to excuse exhaustion for pretrial detainee
asserting speedy trial and ineffective assistance of counsel
claims). 	Accordingly, the district judge should dismiss Mr.
Holloway’s § 2241 petition for failure to demonstrate that he
has exhausted his state remedies on his Holloway I claims.
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Certificate of Appealability (“COA”)8
When the district court denies a habeas petition filed by a
state inmate on procedural grounds without reaching the
underlying constitutional claims, a COA should issue when the
inmate shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct
in its procedural ruling. 	See Slack v. McDaniel, 529 U.S. 473,
483-84 (2000); see also 28 U.S.C. § 2253(c)(2). 	Here, Mr.
Holloway has not made any substantial showing of the denial of a
constitutional right, and reasonable jurists would not debate
that mootness, Younger abstention, and the unsatisfied
exhaustion requirement bar further review of Mr. Holloway’s
claims relating to Holloway I and Holloway II. 	A COA is
properly denied in this case.
8 See Winburn v. Nagy, 956 F.3d 909, 912 (6th Cir. 2020)
(“The circuit courts speak as one in their holdings that the
language of [28 U.S.C.] § 2253(c)(1)(A) requires certificates of
appealability for all state-prisoner habeas appeals, whether
seeking pretrial relief under § 2241 or post-conviction relief
under § 2254.”). 	But cf. Gonzalez v. Justices of Mun. Ct., 382
F.3d 1, 12 (1st Cir. 2004) (“Where, as here, a habeas petition
is governed by section 2241, a certificate of appealability is
not essential.”), vacated on other grounds, 544 U.S. 918 (2005),
reinstated, 420 F.3d 5 (1st Cir. 2005).
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Conclusion
For the foregoing reasons, the district judge should
dismiss the § 2241 petition (Doc. No. 1) in its entirety,
without prejudice; the district judge should decline to issue a
certificate of appealability; judgment should be entered; and
the case should be closed. 	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). 	The fourteen-day
period may be extended upon motion. 	Failure to file objections
within the specified time waives the right to appeal the
district court’s order. 	See Santos-Santos v. Torres-Centeno,
842 F.3d 163, 168 (1st Cir. 2016).
__________________________________
Andrea K. Johnstone
United States Magistrate Judge
August 3, 2021
cc: 	Dale E. Holloway, Jr., pro se
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