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Clary v. Wall

United States District Court, D. Rhode Island
Apr 15, 2002
C.A. No. 02-99 L (D.R.I. Apr. 15, 2002)


C.A. No. 02-99 L

April 15, 2002

Report and Recommendation

This matter is before the Court on the application of the pro se petitioner, Mezfin K. Clary, Sr., for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241. The Attorney General of the State of Rhode Island, designated a party respondent, has moved to dismiss the petition. Clary has opposed the motion. This matter has been referred to me pursuant to 28 U.S.C. § 636 (b)(1)(B) for a report and recommendation. For the reasons that follow, I recommend that the Attorney General's motion to dismiss be granted.


Petitioner Mezfin K. Clary is currently being detained, awaiting trial in the Rhode Island Superior Court. He was charged on July 17, 2001, with narcotics violations. Unable to post the $75,000 surety bail set on August 1, 2001, he seeks release from pre-trial detention on the following bases:

(1) He never used illegal drugs nor sold illegal drugs;

(2) The Providence Police Department unlawfully increased the amount of crack cocaine seized from 5.82 grams to 58.2 grains;
(3) He had no assistance of counsel when his bail was set at $75,000;
(4) The Family Court issued a body attachment that was not "genuine;"

(5) $75,000 bail is excessive;

(6) He requested discovery materials, but instead received false, incorrect, and misleading statements;

(7) The State failed to provide him with exculpatory evidence;

(8) His request to suppress evidence was denied;

(9) His motion to dismiss the Information was denied; and

(10) There was no probable cause to arrest him without a warrant.

Petitioner has filed an application for habeas relief, allegedly pursuant to 28 U.S.C. § 2241. Although filed pursuant to § 2241, petitioner's application will be construed as one brought pursuant to 28 U.S.C. § 2254. See Chambers v. United States, 106 F.3d 472, 474 (2nd Cir. 1997) (Court is not bound by the label placed on the petition); See also id. (§ 2241 is used to challenge the execution of a sentence).


Before a federal court may grant habeas relief, a petitioner must normally exhaust his remedies available in state court. In other words, the petitioner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition. This is known as the exhaustion doctrine, first announced in Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734 (1886), and now codified at 28 U.S.C. § 2254 (b)(1).

A petitioner satisfies the exhaustion doctrine by fairly presenting his claims to the highest state court with jurisdiction to consider them.Keeney v. Tamayo-Reyes, 504 U.S. 1, 9, 112 S.Ct. 1715, 1719 (1992);Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512 (1971). This means that the habeas petitioner must have presented the substance of his federal constitutional claim to the state appellate court so that the state court had the first chance to correct the claimed constitutional error. See Lanigan v. Maloney, 853 F.2d 40 (1st Cir. 1988). Only if the same factual and legal theory that forms the basis of the petitioner's habeas petition has been presented to the state court will the petition for writ be properly before the federal court. Scarpa v. Dubois, 38 F.3d 1, 6 (1st Cir. 1994); Nadonworthy v. Fair, 872 F.2d 1093, 1096 (1st Cir. 1989). A claim is not considered exhausted if the petitioner "has the right under law of the state, to raise, by any procedure available, the question presented." 28 U.S.C. § 2254 (c).

In the instant application, petitioner bases his habeas petition, seeking release from pre-trial detention, on a myriad of grounds. Although he has an on-going proceeding in the state courts in which he can present these claims, he has failed to do so. See Martinez v. Commonwealth of Puerto Rico, 435 F. Supp. 1204 (D.P.R. 1977). Petitioner has not presented any of these claims to the state courts for determination. Thus, his claims are not exhausted. Since the claims presented in the instant application are unexhausted, the respondent's motion to dismiss should be granted.

Assuming arguendo that petitioner had presented his claims to the state courts, his habeas petition should nonetheless still be dismissed. Petitioner here seeks a release from custody while his trial is awaiting to be heard. Petitioner seeks to have this court release him unconditionally, overturning the state trial court's determination to grant him $75,000 surety bail.

It is uncontested that a federal habeas corpus is a proper remedy by which to seek relief from an unconstitutional state custody imposed pursuant to an arbitrary denial of bail. United States ex rel. Goodman v. Kehl, 456 F.2d 863 (2nd Cir. 1972); United States ex rel. Diller v. Greco, 426 F. Supp. 375 (S.D.N Y 1977). However, this jurisdiction to consider such matters does not give a federal court the license to substitute its judgement and discretion for that of the state court.

"There might have been room for a difference in judgement on the amount of bail, but consideration by a federal court could not be asked or given upon that basis. A federal court would not be entitled to act in substitution of judgement for that of the state court. What the state court did would have to be beyond the range within which judgements could rationally differ in relation to the apparent elements of the situation. It would have to amount in its effect to legal arbitrariness in the administration of the bail right provided, so as to constitute a violation of due process, or discriminatoriness in the application of the right as against the petitioner, so as to constitute a violation of equal protection." Mastrian v. Hedman, 326 F.2d 708, 711 (8th Cir.), cert denied 376 U.S. 965, 84 S.Ct. 1128 (1964).

Here, bail has not been denied. Rather, bail has been set by the state court in the amount of $75,000 for the petitioner. This court will not upset the state court's determination on the appropriateness of that amount, nor substitute our judgement for theirs. Thus, even if the petitioner had exhausted his claims in the state courts, respondent's motion to dismiss should still be granted.


For the reasons stated above, I recommend that the respondent's motion to dismiss be granted. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).

Summaries of

Clary v. Wall

United States District Court, D. Rhode Island
Apr 15, 2002
C.A. No. 02-99 L (D.R.I. Apr. 15, 2002)
Case details for

Clary v. Wall

Case Details


Court:United States District Court, D. Rhode Island

Date published: Apr 15, 2002


C.A. No. 02-99 L (D.R.I. Apr. 15, 2002)