Holloway v. NH State Prison, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Dale E. Holloway, Jr.
v. 	Case No. 22-cv-022-SM
New Hampshire State Prison Warden
REPORT AND RECOMMENDATION
Before the court is 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 in State v. Holloway,
No. 226-2019-cr-814 (N.H. Super. Ct., Hillsborough Cty.-S.D.)
(“Holloway I”). 	Mr. Holloway is presently serving his prison
sentence imposed in another criminal matter, see State v.
Holloway, No. 216-2019-cr-1856 (N.H. Super. Ct., Hillsborough
Cty.-N.D.) (“Holloway II”), while awaiting the trial in Holloway
I. 	This § 2241 petition concerning Holloway I is before the
court for screening, 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
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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
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
I. 	State Proceedings
In Holloway I, 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.
He was ordered detained without bail in that matter in October
2019.
While in pretrial detention at the Hillsborough County
Department of Corrections (“HCDC”), Mr. Holloway assaulted the
attorney representing him in that matter. 	He was prosecuted for
that assault in Holloway II. 	He pleaded guilty and was
sentenced in Holloway II in May 2021 to 7½ to 15 years, stand
committed. 	Mr. Holloway was transferred to the New Hampshire
State Prison (“NHSP”), where he is currently a prisoner.
In February 2021, while still in pretrial detention, Mr.
Holloway filed a state habeas petition in the N.H. Supreme Court
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(“NHSC”) under NHSC Rule 11, challenging the legality of his
indictments and pretrial detention orders. 	See In re Holloway,
No. 2021-0054 (N.H., filed Feb. 18, 2021). 	The NHSC denied that
petition on April 15, 2021. 	See In re Holloway, No. 2021-0054
(N.H. Apr. 15, 2021).
Also in April 2021, Mr. Holloway filed a state “Petition
for Writ of Habeas Corpus” in Holloway I, seeking bail on
personal recognizance, asserting that his pretrial detention
violated his due process rights. 	The Superior Court in Holloway
I denied that petition on May 11, 2021.
Mr. Holloway filed his “Motion to Enforce Constitutional
Rights” in Holloway I in 2022. 	A hearing on that motion was
scheduled for September 9, 2022. 	A written decision on that
motion is not part of this court’s record. 	Jury selection in
Holloway I is scheduled for October 31, 2022.
II. 	Federal Proceedings
In addition to this § 2241 petition relating to Holloway I,
Mr. Holloway filed two prior § 2241 petitions, challenging the
indictments and state court detention orders in both Holloway I
and Holloway II. 	Those prior § 2241 petitions were dismissed
without prejudice. 	See Holloway v. HCDC Superintendent, No. 21-
cv-205-PB, 2021 WL 1227760, 2021 U.S. Dist. LEXIS 64821 (D.N.H.
Mar. 15, 2021), R&R adopted, No. 21-CV-205-PB, 2021 WL 1227082,
2021 U.S. Dist. LEXIS 198029 (D.N.H. Apr. 1, 2021) (“First 2241
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Petition”); see also Holloway v. United States, No. 21-cv-456-
JD, 2021 WL 5868223, 2021 U.S. Dist. LEXIS 198029 (D.N.H. Aug.
3, 2021), R&R adopted, 2021 U.S. Dist. LEXIS 197030, 2021 WL
4772120 (D.N.H. Oct. 12, 2021) (“Second § 2241 Petition”).
Mr. Holloway has also filed a post-conviction petition for
a writ of habeas corpus under 28 U.S.C. § 2254, challenging his
conviction and sentence in Holloway II, see Holloway v. Warden,
No. 22-cv-009-SE (D.N.H., filed Jan. 11, 2022) (“2254
Petition”). 	That § 2254 petition remains pending, as the
court’s 2254 Rule 4 review is not yet complete.
In the instant § 2241 petition, Mr. Holloway asserts
federal constitutional claims that substantially overlap with
those raised in his two prior § 2241 petitions. 	He claims that
his October 2019 arrest and pretrial detention were unlawful
under the Privileges and Immunities Clause and the Fourth,
Eighth, and/or Fourteenth Amendments; that he has been held in
unconstitutional conditions of confinement, in violation of the
Eighth Amendment; that his Sixth Amendment rights to a fair
trial, a speedy trial, and the effective assistance of counsel
have been denied; that his indictments are invalid and subject
to dismissal; and that he has been denied due process, in
violation of the Fourteenth Amendment. 	Mr. Holloway seeks a
hearing, release from confinement, and dismissal of his state
indictments.
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Discussion
I. 	Younger Abstention
Mr. Holloway has asserted federal constitutional claims
challenging the validity of his prosecution and detention in
Holloway I. 	He asserted similar claims in his prior § 2241
petitions. 	Applying the abstention doctrine in Younger v.
Harris, 401 U.S. 37 (1971), the court in the Second § 2241
Petition concluded that abstention until the end of his criminal
prosecution was required, and then the court dismissed those
petitions without prejudice for that reason. 	See Second § 2241
Petition, 2021 WL 5868223, at *4, 2021 U.S. Dist. LEXIS 198029,
at *6-12 (D.N.H. Aug. 3, 2021) (citing cases); cf. First § 2241
Petition, 2021 WL 1227760, at *3, 2021 U.S. Dist. LEXIS 64821,
at *5-8 (D.N.H. Mar. 15, 2021) (noting that, absent
extraordinary circumstances, courts have applied Younger to
dismiss pretrial habeas claims relating to bail, innocence, and
due process violations, and concluding that this court would
examine implications of Younger if Mr. Holloway exhausted his
state remedies).
There has been no material change in Mr. Holloway’s
circumstances relating to Holloway I, with respect to the
application of Younger to his federal habeas claims. 	The
Holloway I prosecution satisfies the prerequisites for Younger
abstention, as it is ongoing, implicates important state
interests, and continues to provide an opportunity for him to
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advance his federal claims. 	The bad faith, harassment, and
flagrantly-unconstitutional-state-statute exceptions to Younger
abstention are inapplicable. 	See Second § 2241 Petition, 2021
WL 5868223, at *4, 2021 U.S. Dist. LEXIS 198029, at *8-12
(analyzing issues and discussing inapplicability of those
exceptions). 	Following the disposition of Mr. Holloway’s prior
§ 2241 petition, and for like reasons, the district judge in
this case should abstain from ruling on the federal claims Mr.
Holloway has asserted, and this petition should be dismissed
without prejudice, pursuant to the Younger abstention doctrine.
II. 	Exhaustion
The exhaustion requirement that courts generally apply to
pretrial § 2241 petitions provides a separate basis for
dismissing Mr. Holloway’s petition. 	In dismissing Mr. Holloway’s
prior § 2241 petitions for lack of exhaustion, the court
concluded that he had not demonstrated that any exception to the
exhaustion requirement applies to his circumstances, or that his
prior NHSC Rule 11 proceedings exhausted his state remedies.
See Second § 2241 Petition, 2021 WL 5868223, at *4, 2021 U.S.
Dist. LEXIS 198029 (D.N.H. Aug. 3, 2021) (“Absent a showing that
the NHSC in fact ruled on the merits of [his] claims or that
[petitioner] 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
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that his prior [NHSC] Rule 11 filings exhausted his state
remedies on those claims.”), R&R adopted, 2021 U.S. Dist. LEXIS
197030, 2021 WL 4772120 (D.N.H. Oct. 12, 2021).
There have been no further state proceedings culminating in
NHSC review that have occurred since the court issued its orders
in 2021 dismissing Mr. Holloway’s prior § 2241 petitions. 	The
Superior Court hearing on Mr. Holloway’s “Motion to Enforce
Constitutional Rights” has not provided the NHSC with any
opportunity to review his claims. 	Mr. Holloway has not fairly
presented his claims in the NHSC; he is not excused from the
jurisprudential exhaustion requirement; and no exception to that
exhaustion requirement applies. 	See id.; see also Porter v.
Scurry, No. 21-cv-772-LM, 2022 U.S. Dist. LEXIS 48046, at *6,
2022 WL 813745, at *3 (D.N.H. Jan. 25, 2022) (summarily denied
NHSC Rule 11 petition did not exhaust state remedies on claims
asserted therein), R&R adopted, 2022 U.S. Dist. LEXIS 47903,
2022 WL 813744 (D.N.H. Mar. 17, 2022). 	Accordingly, this § 2241
petition should be dismissed by the district judge, without
prejudice, because of Mr. Holloway’s failure to show that he has
exhausted his state remedies on his claims.
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Certificate of Appealability (“COA”)1
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 Younger abstention, and the unsatisfied exhaustion
requirement, bar further review of Mr. Holloway’s claims. 	A COA
is properly denied in this case.
Conclusion
For the foregoing reasons, the district judge should
dismiss the § 2241 petition (Doc. No. 1) in its entirety,
1See 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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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
September 12, 2022
cc: 	Dale E. Holloway, Jr., pro se
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