The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
This action is dismissed without prejudice to petitioner filing
a new habeas action if he is convicted and after he has exhausted
his state court remedies by giving the state's highest court a
fair opportunity to rule on the merits of each of his claims.
IT IS SO ORDERED AND ADJUDGED. Homer Hawkins, currently incarcerated in the Marin County Jail,
filed a petition for writ of habeas corpus, apparently under
28 U.S.C. § 2241. The pleading is now before the court for review
pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing
Section 2254 Cases.
Hawkins is a pretrial detainee. According to his petition, he
is representing himself in a criminal trial that has not yet
occurred. He alleges in his petition that he is not being allowed
the pro per privileges at the county jail necessary to
represent himself, the judge is biased, there has been a
Miranda violation, the jail has violated his attorney-client
privilege, his mail has been opened improperly, no grand jury was
provided for his case, and his speedy trial right has been
Principles of comity and federalism require that this court
abstain and not entertain a pretrial habeas challenge unless the
petitioner shows that: (1) he has exhausted available state
judicial remedies, and (2) "special circumstances" warrant
federal intervention. Carden v. Montana, 626 F.2d 82, 83-84 (1980), cert. denied,
449 U.S. 1014 (1980); see also Younger v. Harris, 401 U.S. 37, 43-54
(1971) (under principles of comity and federalism, a federal
court should not interfere with ongoing state criminal
proceedings by granting injunctive or declaratory relief absent
extraordinary circumstances). The special circumstances that
might warrant federal habeas intervention before trial include
proven harassment, bad faith prosecutions and other extraordinary
circumstances where irreparable injury can be shown. Carden,
626 F.2d at 84 (violation of speedy trial right not alone an
extraordinary circumstance). Because Hawkins has not shown
special circumstances that warrant federal intervention before
the trial is held and any appeal is completed, his petition is
DISMISSED without prejudice. See id. at 84. The alleged
constitutional violations that Hawkins claims he is enduring are
matters that can and should be addressed in the first instance by
the trial court, and then by the state appellate courts, before
Hawkins seeks a federal writ of habeas corpus.
The court notes that one of Hawkins' claims has no merit as a
matter of law. Hawkins had no right to be indicted by a grand
jury. Prosecution by grand jury indictment has long been held
not to be required of the states by the Due Process Clause.
See Hurtado v. California, 110 U.S. 516, 538 (1884) (grand
jury indictment not necessary for California because adequate
procedural protection existed under system which permitted
proceeding by information after examination and commitment by a
magistrate certifying to the probable guilt of defendant);
Jeffries v. Blodgett, 5 F.3d 1180, 1188 (9th Cir. 1993), cert.
denied, 510 U.S. 1191 (1994).
The action also is dismissed for the independent reason that a
proper respondent was not named in the petition. See
Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996).
Although the absence of a proper respondent is a defect that
ordinarily could be cured by amendment of the petition, leave to
amend will not be granted because abstention is required with or
without the proper respondent.
This action is dismissed because Hawkins did not exhaust his
state court remedies before filing his habeas petition. This
dismissal does not comment on the merits of any of Hawkins'
claims (except the grand jury claim, which would be meritless
whenever raised), but instead is based simply on the timing
problem, i.e., the petition is premature. Hawkins should not file
a new federal petition for writ of habeas corpus unless he gets
convicted and then not until his direct appeal and state habeas
proceedings have concluded and he has given the state's highest
court a fair opportunity to rule on each of his claims.
The in forma pauperis application is GRANTED. (Docket #5.)
The clerk shall close the file.
IT IS SO ORDERED.