United States District Court, D. Hawaii
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
AND DENYING A CERTIFICATE OF APPEALABILITY
A. OTAKE UNITED STATES DISTRICT JUDGE.
the Court is pro se Petitioner Nicholas Burns' Petition
under 28 U.S.C. § 2241 for a Writ of Habeas Corpus. ECF
No. 1. Burns challenges his pending criminal prosecution in
State v. Burns, Cr. No. 3CPC-19-0000468 (Haw. 3d
Cir. Ct.). Pet. at 1. Burns alleges that his ongoing
state criminal proceedings violate his constitutional rights
to freedom of speech, equal protection, and to a speedy
trial. See Id. at 4-6. He seeks removal of his
criminal proceedings to this federal court.
following reasons, Burns' Petition and this action are
DISMISSED without prejudice as clearly unexhausted and
pursuant to the abstention doctrine set forth in Younger
v. Harris, 401 U.S. 37 (1971). Any request for a
certificate of appealability is DENIED.
court records show that Burns was arrested on June 28, 2019
and arraigned in the Circuit Court of the Third Circuit,
State of Hawai‘i (“circuit court”) on July
8, 2019. See Burns, Cr. No. 3CPC-19-0000468. The
circuit court appointed James Biven, Esq., to represent Burns
on July 15, 2019. On August 28, 2019, Biven filed several
motions, including a motion to suppress evidence, a motion to
sever Count 4, a motion to withdraw as counsel, and a request
for transcript and other materials and information. See
Id. Burns approved and sought Biven's motion to
withdraw. See Pet. at 6 (stating that he
“fired” Biven because he was ineffective and
“use less [sic]”). The circuit court explained to
Burns that if it allowed Biven to withdraw, it would appoint
a new attorney who would likely seek a continuance of trial
to become familiar with the case. See Burns, Cr. No.
3CPC-19-0000468. Burns asserted that he would not waive his
right to a speedy trial. Id.
September 3, 2019, the circuit court granted Biven's
request to withdraw; Burns is now represented by William
Turman Reece, Jr., Esq. Although Burns posted bond on
September 25, 2019, he is awaiting trial. The court received
and filed Burns' Petition on September 26,
asserts four grounds for relief. He first alleges that the
Honorable Melvin H. Fujino, the presiding judge at his
pre-trial proceedings, violated his right to freedom of
speech by refusing to answer Burns' questions, telling
Burns that he did not know what he was talking about, and
allegedly having Burns removed from an August 26, 2019
hearing. Pet. at 5 (Ground One, “Freedom of
Burns complains that Hawaii Community Correctional Center
(“HCCC”) Warden Peter Cabreros violated his right
to due process on August 27, 2019, by instructing Burns to be
more specific on an “Inmate Request Form, ” or
file a properly conformed inmate grievance. See Id.
at 9 (Ground Two, “Due Process Right”);
id. at 10 (Inmate Request Form).
next alleges that the State violated the Eighth and
Fourteenth Amendments by imposing excessive bail and
inflicting cruel and unusual punishment on him during his
incarceration at HCCC before he posted bail. See Id.
at 4 (Ground Three, “Violation of Equal
Protection”). Burns asserts no specific statement of
facts in support of these claims.
Burns alleges a violation of his right to a speedy trial,
complaining that he had no assistance of counsel
“despite requests” to the circuit court on August
28, 2019, when Burns told Biven to file a motion to withdraw
and “fired” him. See Id. at 4;
id. at 6 (Ground Four, “Violation of Speedy
Rule 4 of the Rules Governing Section 2254 Cases, the
district court is required to perform a preliminary review of
all habeas petitions. Rule 4 explicitly applies to all habeas
petitions, including those brought under § 2241.
See Rule 1(b) of the Rules Governing Section 2254
Cases (“The district court may apply any and all of
these rules to a habeas corpus petition not covered” by
28 U.S.C. § 2254.). The court is required to summarily
dismiss a habeas petition before the respondent is ordered to
file a response, if it “plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court.” Id.
has not yet been tried, convicted, or sentenced, nor has he
sought any appeal of the issues he raises in State v.
Burns, Cr. No. 3CPC-19-0000468. Rather, he again seeks
to derail his ongoing state criminal proceedings in favor of
a trial in federal court. The Court has carefully explained
to Burns that removal of his state criminal proceedings is
improper under 28 U.S.C. §§ 1443 and 1455. See
Burns, Civ. No. 19-00488 JAO-RT, ECF No. 3 (Order of