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Burns v. State of Hawaii Corp.

United States District Court, D. Hawaii

October 17, 2019

NICHOLAS BURNS, #A5003928 Petitioner,
v.
STATE OF HAWAII CORP., PETER CABREROS, Respondents.

          ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY

          JILL A. OTAKE UNITED STATES DISTRICT JUDGE.

         Before 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.).[1] Pet. at 1.[2] 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.[3]

         For the 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.

         I. BACKGROUND

         State 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.

         On 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, 2019.[4]

         Burns 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.[5] Pet. at 5 (Ground One, “Freedom of Speech”).

         Next, 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).

         Burns 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.

         Finally, 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 Trial Right”).

         II. SCREENING

         Under 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.

         III. DISCUSSION

         Burns 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 ...


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