Holloway v. Hillsborough County Department of Corrections, Superintendent et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Dale E. Holloway, Jr.
v. 	Case No. 21-cv-205-JL
Hillsborough County Department of
Corrections Superintendent 1
REPORT AND RECOMMENDATION
Before the court is Dale E. Holloway’s petition for writ of
habeas corpus (Doc. No. 1), 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
Pursuant to § 2254 Rule 4, 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.” 	Id. 	“Federal courts are
authorized to dismiss summarily any habeas petition that appears
1 The respondent in this action is Mr. Holloway’s current
custodian, the Superintendent of the Hillsborough County
Department of Corrections. 	All others named as respondents in
this action should be dropped as parties.
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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
Mr. Holloway is in pretrial detention at the HCDOC for two
criminal cases pending in New Hampshire state courts, State v.
Holloway, No. 226-2019-cr-814 (N.H. Super., Hillsborough Cnty.-
S.D.) (“Holloway I”), and State v. Holloway, No. 216-2019-cr-
1856 (N.H. Super., Hillsborough Cnty.-N.D.) (“Holloway II”). 2 	In
Holloway I, Mr. Holloway has been charged with attempted murder
and assault arising from a shooting at a church service in
Pelham, New Hampshire. 	He is represented by counsel in that
case, and he has been held without bail in that proceeding since
October 22, 2019. 	The judge in that case is holding periodic
status conferences. 	See Holloway I, Jan. 14, 2021 Order. 3 	In
Holloway II, Mr. Holloway is charged with assaulting the
attorney who was representing him in Holloway I in October 2019,
while they were meeting at the HCDOC. 	Mr. Holloway has elected
2 In addition, Mr. Holloway is subject to a warrant issued on
a bail violation in Commonwealth v. Holloway, No. 1283-cr-00438
(Mass. Super., Plymouth), arising out of the charges at issue in
Holloway I.
3 The Holloway I court’s January 14 order is available at
https://www.courts.state.nh.us/caseinfo/pdf/Holloway/011421Hollo
way-Order.pdf (last visited March 12, 2021)
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to represent himself in Holloway II at the trial scheduled for
June 2021. 	See Holloway II, Oct. 28, 2020 Order. 4 	The state
courts in those cases have denied Mr. Holloway’s motions to
reduce his bail.
Mr. Holloway tested positive for COVID-19 at the HCDOC in
early January 2021. 	Mr. Holloway claims that his HCDOC
confinement at this time violates his rights not to be subjected
to indefinite detention, excessive bail, and cruel, unusual, and
punitive conditions of pretrial confinement; that he has been
denied access to effective, conflict-free representation in the
pending state cases; and that his continued detention violates
his rights to a speedy trial and to equal protection of the
laws. 	Mr. Holloway cites, in particular, the Fifth, Sixth,
Eighth, and Fourteenth Amendments, as well as his rights under
the New Hampshire Constitution. 	In this action, he seeks review
of the bail orders in both of his state criminal cases and an
order releasing him on personal recognizance.
Discussion
I. 	Proper Construction of Petition as Filed under § 2241
Mr. Holloway’s petition does not cite any federal statute
as authority for the relief requested. 	The court docketed Mr.
4 The Holloway II court’s October 28 order is available at
https://www.courts.state.nh.us/caseinfo/pdf/Holloway/102820Hollo
way-Order.pdf (last visited March 11, 2021)
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Holloway’s petition as having been filed under 28 U.S.C. § 2254.
That docketing appears to have been mistaken. 	Mr. Holloway does
not satisfy the prerequisites for obtaining relief under 28
U.S.C. § 2254. 	He is not in custody pursuant to a judgment of
any state tribunal, and he is not challenging a conviction or
sentence in any state case. 	Those facts would provide grounds
for dismissing Mr. Holloway’s petition, if it were construed as
a § 2254 petition. 	See Bancroft v. Massachusetts, 525 F. Supp.
2d 237, 241 (D. Mass. 2007) (dismissing § 2254 petition raising
speedy trial claims as petitioner was not challenging any state
judgment of conviction, and because petitioner did not exhaust
state remedies).
In light of Mr. Holloway’s pro se status, his petition for
a writ of habeas corpus may be liberally construed as a petition
for a writ of habeas corpus under 28 U.S.C. § 2241. 	Section
2241 authorizes federal courts to entertain habeas petitions
filed by inmates, including pretrial detainees in state
facilities, asserting that they are in custody in violation of
the Constitution or laws of the United States. 	The type of
claims asserted by Mr. Holloway include claims that could be
litigated through a section 2241 petition, under certain
circumstances. 	See, e.g., McPherson v. Lamont, 457 F. Supp. 3d
67, 75 (D. Conn. 2020) (inmates in state custody “challenging
the current health conditions of their confinement, which, they
claim, have become unconstitutional because of the COVID-19
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pandemic risk,” who “are not attacking their underlying
sentences,” may invoke court’s jurisdiction over § 2241
petitions for their claims). 	Accordingly, the district judge
should direct the clerk’s office to update the docket to show
that Mr. Holloway’s petition was filed under 28 U.S.C. § 2241.
II. 	Exhaustion as to COVID-19 Claim and Bail Hearing Claims
Mr. Holloway’s petition includes claims asserting that his
confinement without an adequate bail hearing violates his right
to due process, and that his confinement in conditions that have
exposed him to COVID-19 infection violates his rights under the
Eighth Amendment (which applies to convicted inmates) and the
Fourteenth Amendment (which applies to inmates in pretrial
detention). 	Courts generally require inmates in state custody
to fully litigate their federal claims through the state courts
(that is, to exhaust their state remedies) before seeking relief
under section 2241. 	See Bancroft, 525 F. Supp. 2d at 241; see
also Timms v. Johns, 627 F.3d 525, 530-31 (4th Cir. 2010).
To satisfy § 2241’s exhaustion 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, 457 F. Supp. 3d at 76 (citations omitted).
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The jurisprudential exhaustion requirement under section
2241 “‘protect[s] the state courts’ opportunity to confront and
resolve initially any constitutional issues arising within their
jurisdictions’” and “‘limit[s] federal interference in the state
adjudicatory process.’” 	Hartfield v. Osborne, 808 F.3d 1066,
1073 (5th Cir. 2015). 	Federal claims that have been fully
exhausted will more often than not be accompanied by a complete
factual record that aids the federal court in its review of
those claims. 	See Rose v. Lundy, 455 U.S. 509, 519 (1982).
Mr. Holloway appears to be in the process of exhausting his
bail hearing and COVID-19 claims in the state courts at this
time. 	He filed motions in Superior Court to reduce bail in his
criminal cases, and those motions were denied. 	In addition, on
February 21, 2021, less than one month prior to the date of this
Order, Mr. Holloway filed a state habeas petition in the New
Hampshire Supreme Court (“NHSC”), raising claims similar to
those asserted here. 	See State v. Holloway, No. 2021-0054
(N.H., filed Feb. 18, 2021). 	The NHSC has not issued any ruling
on that petition. 	Accordingly, Mr. Holloway has not completely
exhausted all available state remedies as to the claims raised
in his section 2241 petition.
Nor does it appear that any exception to the exhaustion
requirement applies here. 	“‘Exceptions to the exhaustion
requirement are appropriate where . . . remedies either are
unavailable or wholly inappropriate to the relief sought, or
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where the attempt to exhaust such remedies would itself be a
patently futile course of action.’” 	Fuller v. Rich, 11 F.3d 61,
62 (5th Cir. 1994) (citation omitted). 	Exceptions to the
exhaustion requirement arise only in “‘extraordinary
circumstances,’” and petitioner bears the burden of
demonstrating the futility of exhausting state remedies. 	Id.
(citations omitted). 	See, e.g., 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
section 2241 exhaustion requirement for pretrial detainee
asserting speedy trial, ineffective assistance of counsel, and
excessive confinement claims).
One way that an inmate could demonstrate futility is by
demonstrating that the delay attending exhaustion would expose
him or her to catastrophic health consequences. 	See McPherson,
457 F. Supp. 3d at 76. 	Here, Mr. Holloway asserts that he fears
he is at risk for “severe health complications” or “sudden
death” while confined at the HCDOC during the COVID-19 pandemic.
In support of that assertion, he has filed a lab report as an
exhibit, stating that on January 4, 2021, he tested positive for
COVID-19 at the HCDOC. 	Documents filed by counsel on Mr.
Holloway’s behalf in Holloway I report that Mr. Holloway has a
history of asthma. 5 	In the record before this court, however, it
5 See Apr. 2, 2020 Mot. for Bail H’g, Holloway I, at
https://www.courts.state.nh.us/caseinfo/pdf/Holloway/040220Hollo
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is not clear whether Mr. Holloway has suffered any substantial
or persistent symptoms or effects of COVID-19 infection at any
time since testing positive in January 2021. 6 	Neither the COVID-
19 pandemic, nor Mr. Holloway’s January 4, 2021 positive COVID-
19 test result provides a ground for finding at this time that
requiring him to complete the process of exhausting his state
remedies would be futile or otherwise inappropriate under the
circumstances. 	Moreover, nothing before this court suggests
that Mr. Holloway will be unable to exhaust the claims asserted
in this case in his pending state court proceedings, without
delay. 	Accordingly, the district judge should dismiss Mr.
Holloway’s § 2241 petition for a writ of habeas corpus, without
prejudice, for lack of exhaustion.
III. Younger Abstention
As the court should dismiss the petition for lack of
exhaustion, the court need not address at this time whether
abstention is required under Younger v. Harris, 401 U.S. 37
way-mot.pdf (last accessed March 11, 2021).
6 The N.H. Department of Health and Human Services (“DHHS”)
has listed the Hillsborough County House of Corrections as the
locus of a current COVID-19 outbreak. 	See DHHS COVID-19 Update
– March 11, 2021, at https://www.nh.gov/covid19/news/updates.htm
(last accessed March 12, 2021). 	As of March 11, 2021, there
were 20 resident cases and 2 staff cases at the facility. 	Id.
A prior outbreak at the same facility, which had been ongoing at
the time of Mr. Holloway’s positive test result in January 2021,
came to an end on February 11, 2021. 	Id.
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(1971), with respect to Mr. Holloway’s claims. 	This court
notes, however, that “‘[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.’” 	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) (citation omitted), R&R approved,
2020 U.S. Dist. LEXIS 243246, 2020 WL 7753684 (D. Me. Dec. 29,
2020); see also Enwonwu v. Mass. Super. Ct., Fall River, No.
1:12-cv-10703-DJC, 2012 WL 1802056, at *3 n. 7, 2012 U.S. Dist.
Lexis 68192, at *9-10 n.7 (D. Mass. May 16, 2012) (citing
cases). 	Cf. Gerstein v. Pugh, 420 U.S. 103, 108 n.9 (1975)
(Younger abstention was not required where federal court ordered
state to give pretrial detainees probable cause hearings, as
federal court’s order “was not directed at the state
prosecutions as such, but only at the legality of pretrial
detention without a judicial hearing, an issue that could not be
raised in defense of the criminal prosecution,” and federal
court’s order to hold preliminary hearings “could not prejudice
the conduct of the trial on the merits”). 	If Mr. Holloway
completes the process of exhausting his state remedies and
refiles a similar petition while his state prosecutions remain
ongoing, the court will address, as appropriate, the
implications of the Younger abstention doctrine at that time.
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Certificate of Appealability
Although a certificate of appealability (“COA”) is not
essential when a habeas petitioner seeks relief under section
2241, the district judge should decline to issue a COA in this
case. 7 	A COA may issue “only if the [petitioner] has made a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S.
473, 483-84 (2000). 	When the district court denies a habeas
petition on procedural grounds without reaching the underlying
constitutional claim, 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. 	Slack, 529 U.S. at 484. 	Here, Mr. Holloway
has not made a substantial showing of the denial of a
constitutional right, and reasonable jurists would not debate
7 See Gonzalez v. Justices of the Mun. Court, 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.”), jt. vacated on other grounds by 544 U.S. 918
(2005), and reinstated 420 F.3d 5 (1st Cir. 2005). 	But 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
§ 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.”).
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that his failure to exhaust his state remedies bars further
review of his claims at this time.
Conclusion
For the foregoing reasons, the district judge should:
1. 	Direct the clerk’s office to update the docket to
reflect that Mr. Holloway’s petition for a writ of habeas
corpus was filed under 28 U.S.C. § 2241, and to list the
Superintendent of the HCDOC as the respondent;
2. 	Dismiss that petition (Doc. No. 1) in its
entirety, without prejudice, for lack of exhaustion; and
3. 	Decline to issue a certificate of appealability.
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
March 15, 2021
cc: 	Dale E. Holloway, Jr., pro se
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