UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

William Dexter Miller, Jr.

v. Civil No. 07-cv-388-SM

Superintendent, Strafford County 

Department of Corrections

O R D E R

Having carefully considered the objection filed, the report and recommendation

is accepted, in part. I, like the magistrate judge, will assume that Mrs. Miller has

been authorized by her son, the real party in interest, to bring this habeas corpus

petition. I will assume, as well, both that she either has, or could, provide a

reasonable explanation for William Miller's failure to pursue the action on his own

behalf (e.g. mental incompetence or other disability precluding him from accessing

the courts on his own behalf). I will also accept, for these purposes, that she satisfies

the general requirements that she be truly dedicated to William Miller's best interest

and, as his mother, has a significant relationship with him, such that she can be relied

upon to pursue his best interests. See generally 28 U.S.C. § 2242.

Case 1:07-cv-00388-SM Document 4 Filed 12/17/07 Page 1 of 3
William Miller appears to be a pretrial detainee who is facing state criminal

charges of some sort. Because there is no state judgment of conviction, his petition

is deemed to have been brought pursuant to 28 U.S.C. § 2241, the general habeas

statute. See White v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004) (listing pretrial

detention as a challenged circumstance to which § 2241 applies). The principal

difficulty associated with Miller's petition is that identified by the magistrate judge,

i.e. failure to exhaust available state remedies. Principles of comity and federalism

require this court to abstain from entertaining a pre-conviction habeas challenge

unless petitioner can show that he has exhausted all available state judicial remedies

(i.e. that he has presented his federal claims to the state's courts and has sought

available appellate review), and that "special circumstances" exist that would warrant

federal intervention at this early stage of the state prosecution (e.g., bad faith baseless

prosecution, irreparable injury, etc.). 

The petition satisfies neither requirement. Petitioner does not allege, much

less show, that available remedies in New Hampshire's courts have been exhausted,

or that "special circumstances" exist that would counsel against abstention. See

generally Mitchell v. Plummer, Slip Copy, 2007 WL 3072215 (N.D. Cal. October 19,

2007); Carden v. Montana, 626 F.2d 82, 83-84 (9th Cir. 1980).

Case 1:07-cv-00388-SM Document 4 Filed 12/17/07 Page 2 of 3
Accordingly, the petition is dismissed, but without prejudice to petitioner's

filing a new habeas petition either after a state judgment of conviction and exhaustion

of appeals and collateral remedies available in the state's courts, or, before such an

occurrence, if he can plead in good faith, and show, that all available state judicial

remedies have been exhausted and that "special circumstances" warrant federal

intervention rather than abstention. The ninety day reporting requirement referred to

in the report and recommendation is not adopted.

SO ORDERED.

December 17, 2007 _________________________________

Steven J. McAuliffe

Chief Judge

cc: Marie Luise Miller

Case 1:07-cv-00388-SM Document 4 Filed 12/17/07 Page 3 of 3