*

 After an examination of the briefs and the record, we have concluded that

oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the

record. See Fed. R. App. P. 34(a)(2).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 20, 2006*

Decided December 21, 2006

Before

Hon. FRANK H. EASTERBROOK, Chief Judge

Hon. RICHARD A. POSNER, Circuit Judge

Hon. DANIEL A. MANION, Circuit Judge

No. 06-2682

HUNG NAM TRAN,

Petitioner-Appellant,

v.

BRYAN BARTOW,

Respondent-Appellee.

Appeal from the United States District

Court for the Eastern District of

Wisconsin

No. 05-C-1082

Lynn Adelman,

Judge.

ORDER

Hung Nam Tran, who is being held in the Wisconsin Resource Center

pending a trial under Wis. Stat. § 980 to determine whether he should be civilly

committed as a sexually violent person, appeals from the dismissal of his petition

under 28 U.S.C. § 2241 for a writ of habeas corpus. The district court concluded

that Tran had failed to exhaust his state remedies before turning to federal court. 

We affirm the judgment.

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 06-2682 Page 2

Tran was convicted of first-degree sexual assault of a child in 1992. Shortly

before his release from prison in 2004, the State of Wisconsin filed a petition to have

him civilly committed as a sexually violent person. See Wis. Stat. § 980.02. After a

hearing the Circuit Court of Racine County found probable cause to believe that

Tran is a “sexually violent person,” see Wis. Stat. §§ 980.01(7), 980.04(1), and

ordered him detained pending a trial on the matter, id. § 980.04(3). To date this

trial has not taken place. More than ten months after the probable-cause hearing,

Tran moved for dismissal in the circuit court, claiming a number of constitutional

deficiencies with the procedures used at the hearing. That same day Tran filed his

§ 2241 petition with the district court. The state moved to dismiss the federal

action for failure to exhaust since Tran had not received a ruling on his motion to

dismiss in the circuit court or pursued the matter in the Court of Appeals of

Wisconsin. See Wis. Stat. § 808.03(2) (allowing discretionary appeals of non-final

orders). The district court agreed with the state and dismissed the § 2241 petition.

Trial on the state’s petition for civil commitment has not yet occurred, so

Tran’s situation is analogous to that of a pretrial detainee in a criminal case. Only

in “special circumstances” will relief under § 2241 be available to a state prisoner

before trial, see Neville v. Cavanagh, 611 F.2d 673, 675 (7th Cir. 1979); United

States ex rel. Parish v. Elrod, 589 F.2d 327, 329 (7th Cir. 1979), and even then only

if the prisoner has exhausted available remedies in the state courts, United States

v. Castor, 937 F.2d 293, 296–97 (7th Cir. 1991). We agree with the state that Tran

could have presented his constitutional claims to the Wisconsin courts by obtaining

a ruling on his motion to dismiss and then seeking a discretionary appeal under

Wis. Stat. § 808.03(2). See In re Commitment of Tremaine Y, 694 N.W. 2d 462 (Wis.

Ct. App.) (reviewing, under § 808.03(2), denial of pretrial motion to dismiss § 980

petition), review denied, 700 N.W. 2d 274 (Wis. 2005). Although an appeal under

§ 808.03(2) is discretionary, and the appellate court would not be required to hear

his case, this does not mean that Tran is excused from pursuing this remedy. See

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). And since he did not, the district

court was correct to dismiss his § 2241 petition.

AFFIRMED.