1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DOCK McNEELY, 

Petitioner,

v.

EDWARD N. BONNER, et al.,

Respondents. 

CIV-S-04-1215 DFL PAN P

MEMORANDUM OF OPINION

AND ORDER

Petitioner filed an application for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. The matter was referred to a

United States Magistrate Judge under 28 U.S.C. § 636(B)(1)(b) and

Local General Order No. 262. On February 3, 2005, the magistrate

judge filed findings and recommendations recommending that the

writ should issue, which were served on all parties and which

contained notice to all parties that any objections to the

findings and recommendations were to be filed within twenty days. 

Respondent filed objections to the findings and recommendations.

Case 2:04-cv-01215-DFL -PAN Document 49 Filed 07/18/05 Page 1 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 By order of this court, petitioner was conditionally 1

released from Placer County custody on December 9, 2004, pending

resolution of this case. 

2

By order of March 2, 2005, the court requested supplemental

briefing on several exhaustion issues. Both parties have

submitted supplemental briefs. In accordance with the provisions

of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has

conducted a de novo review of this case. 

Petitioner requests an order from this court that he be

immediately released from state custody and that the state

probation revocation proceedings against him be halted. (Pet. 1

at 5.) As petitioner is awaiting a probation revocation hearing,

relief is improper under 28 U.S.C. § 2254, because petitioner is

not in custody “pursuant to the judgment of a State court.” 

Instead, petitioner’s claim is properly evaluated under 28 U.S.C.

§ 2241(c)(3) which gives the court authority to entertain habeas

petitions raising claims that the petitioner is “in custody in

violation of the Constitution or laws or treaties of the United

States,” including claims by pretrial detainees. 

However, because of the comity concerns raised by a federal

injunction against state court proceedings, pre-trial federal

habeas relief is typically not available. Carden v. Montana, 626

F.2d 82, 83 (9th Cir. 1980); Braden v. 30th Judicial Circuit

Court of Ky., 410 U.S. 484, 489-90, 93 S.Ct. 1193 (1973). 

Generally, the appropriate remedy, absent special circumstances,

is to proceed to trial and raise the constitutional violation as

an affirmative defense. Carden, 626 F.2d at 84-85. Whether

Case 2:04-cv-01215-DFL -PAN Document 49 Filed 07/18/05 Page 2 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

 The Ninth Circuit also had before it the still further 2

delay between the time that this court rendered its ruling and

the time that the case was submitted to the appellate court for

decision. 

3

petitioner can establish that the “extraordinary circumstances”

exception to the general exhaustion requirement applies is

tightly intertwined with the merits of his Fifth Amendment claim

for violation of his right to a speedy probation revocation

proceeding.

In recommending that the writ should issue, the magistrate

judge depends upon the finding of the Ninth Circuit in McNeely v.

Blanas, 336 F.3d 823 (9th Cir. 2003), that Sacramento County

violated petitioner’s Sixth Amendment right to a speedy trial. 

The Ninth Circuit reversed this court’s finding that the majority

of the delay in the Sacramento County proceeding was attributable

to petitioner, and this court is now bound by the appellate

court’s determination. Relying on the proposition that district 2

attorneys are state officers for purposes of 42 U.S.C. § 1983,

the magistrate judge imputes all of the unreasonable delay in the

Sacramento County proceeding to Placer County.

While the court concurs with the magistrate judge’s ultimate

conclusion that Placer County has violated petitioner’s Fifth

Amendment right to a speedy probation revocation proceeding, the

court differs as to the reason for this conclusion. It does not

follow from the fact that district attorneys are state officers

for purposes of § 1983 that the actions of a district attorney of

one county can be automatically attributed to the district

Case 2:04-cv-01215-DFL -PAN Document 49 Filed 07/18/05 Page 3 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

4

attorney of another county. See Weiner v. San Diego County, 210

F.3d 1025, 1031 (9th Cir. 2000) (holding that district attorneys

in California are not necessarily state officers for all

purposes.) 

Instead, after examining the actions of Placer County in

this case, and in light of the Circuit’s decision in the related

case, the court concludes that there has been undue delay by

Placer County. Placer County summarily revoked petitioner’s

probation on September 24, 1998, based on the Sacramento charges,

and issued a bench warrant for his arrest. (Traverse at 20.) 

However, after being informed by Sacramento County that the

warrant would be held in abeyance pending the resolution of the

Sacramento County charges, Placer County took no steps to

complete the probation revocation proceeding, nor was petitioner

informed of the pending Placer County proceeding. (Id.) When

petitioner was finally informed of the proceeding, he repeatedly

sought to invoke his right to a speedy hearing on the probation

revocation. (Id. at 21-22, 33-34.) Petitioner was not brought

to Placer County until February 26, 2002 for arraignment on the

probation revocation. (Id. at 34-35.) He refused to waive his

right to a speedy hearing. (Id.) Placer County officials knew

that nothing had happened in Sacramento County and that

petitioner was prosecuting a federal suit against Sacramento

County based on the delay. (Id.) Nonetheless, Placer County

returned petitioner to Atascadero after the judge “declared a

doubt” about his competence without moving forward on the

Case 2:04-cv-01215-DFL -PAN Document 49 Filed 07/18/05 Page 4 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

5

probation revocation. (Id.) However, a pattern of inaction

followed by referrals to Atascadero for competency review is

precisely what caused the Ninth Circuit to order issuance of the

writ in McNeely. Nothing more was done by Placer County until

August 18, 2003, when it obtained custody of petitioner after

this court ordered petitioner released from Sacramento County

custody. 

While probation or parole revocation is typically a two-step

process, with a preliminary hearing at the time of detention and

a subsequent formal revocation hearing, the first hearing is not

necessarily required if a final revocation hearing is held

without undue delay of if the probationer has already been

convicted of the charges that are the basis for the revocation. 

Morrissey v. Brewer, 408 U.S. 471, 485-87, 92 S.Ct. 2593 (1972);

Heinz v. McNutt, 582 F.2d 1190, 1193-94 (9th Cir. 1978); People

v. Hawkins, 44 Cal.App.3d 958, 964-67, 119 Cal.Rptr. 54 (1975). 

Here, however, Placer County summarily revoked petitioner’s

probation and waited almost five years to provide petitioner with

an opportunity to contest the charges against him. 

The Ninth Circuit, evaluating petitioner’s ability to defend

against these exact charges, found that a delay of this length

significantly prejudiced petitioner’s defense. 336 F.3d at 832. 

In light of the close relationship between the probation

revocation and the Sacramento charges and in view of the ruling

in McNeely, the court finds that the overall length of the delay

is an “extraordinary circumstance” under Carden, such that the

Case 2:04-cv-01215-DFL -PAN Document 49 Filed 07/18/05 Page 5 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

 The Ninth Circuit opinion states that the County may seek 3

to initiate civil commitment proceedings against petitioner. 

McNeely, 336 F.3d at 832. Nothing in this order prevents Placer

County from doing so in its discretion. 

6

exhaustion requirements of 28 U.S.C. § 2241(c)(3) are not

applicable. 

Accordingly, IT IS HEREBY ORDERED that:

1) With the exception as noted, the court ADOPTS the

February 3, 2005 Findings and Recommendations; 

2) The petition for writ of habeas corpus is GRANTED; and,

3) Petitioner shall be released from custody and no further

attempt may be made to revoke his probation based on the pending

charges.3

Dated: 7/15/2005

DAVID F. LEVI

Chief United States District Judge

Case 2:04-cv-01215-DFL -PAN Document 49 Filed 07/18/05 Page 6 of 6