REPORT AND RECOMMENDATION

MICHAEL T. PARKER, Magistrate Judge.

BEFORE THE COURT is Respondent's Motion to Dismiss [5] based on Petitioner's failure to exhaust state court remedies. Petitioner has responded to the motion.1 Having considered the record and the applicable law, the undersigned recommends that the Respondent's Motion to Dismiss [5] be GRANTED.

Background

Petitioner, Craytonia Badger, proceeding pro se and in forma pauperis, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. §2241 on October 27, 2016. Petitioner until just recently was incarcerated in Arkansas.2 See Change of Address [18]. He was just recently extradited to Mississippi. Id. In his Petition [1], Badger seeks to enforce his speedy trial right in certain criminal matters pending in the Circuit Court of Amite County, Mississippi.3 He further claims that he was falsely arrested because of a defective warrant, argues that his appointed counsel is incompetent, and desires to proceed pro se in his state court matters.4 He contends that he filed motions in the circuit court on these issues, but the court will not rule as the matter was stayed. Petitioner requests an order from this Court directing the State to bring one of his Amite County criminal matters to trial and commence an arraignment in his other criminal matter or, alternatively, that this Court dismiss the state charges. See [1] at 8.

In the Motion to Dismiss [5], Respondent contends that the instant petition should be dismissed because Petitioner has failed to exhaust state court remedies. Since the motion [5] was filed, one of Petitioner's criminal matters has been set for trial for July 25, 2017, in Amite County, and motions pertaining to the issues presented in the instant petition are pending before that court. See Generally [14] and Exhibits. Accordingly, the undersigned recommends the Motion [5] to Dismiss be GRANTED, and the petition be dismissed without prejudice.

Analysis

Petitioner, as a pre-trial detainee, seeks to enforce Mississippi's obligation to promptly bring him to trial under the Sixth Amendment. His petition is properly brought under 28 U.S.C. § 2241, "which applies to persons in custody regardless of whether final judgment has been rendered and regardless of the present status of the case pending against him." Dickerson v. State of La., 816 F.2d 220, 224, 226 (5th Cir. 1987); see also Brown v. Estelle, 530 F.2d 1280, 1283 (5th Cir. 1976). Petitioner meets the "in custody" requirement of Section 2241 even though he was in the Arkansas prison system. See Dickerson, 816 F.2d at 225; see also Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 489 n.4 (1973) ("Since the Alabama warden acts here as the agent of the Commonwealth of Kentucky in holding the petitioner pursuant to the Kentucky detainer, we have no difficulty concluding that petitioner is `in custody' for purposes of 28 U.S.C. § 2241(c)(3).").5 However, "federal habeas corpus does not lie, absent `special circumstances,' to adjudicate the merits of an affirmative defense to a state criminal charge prior to a judgment of conviction by a state court." Braden, 410 U.S. at 489. A petitioner is not permitted to derail "a pending state proceeding by an attempt to litigate constitutional defenses prematurely in federal court." Id. at 493.

"[P]re-trial habeas relief is generally not available to consider a petitioner's claim that a state is barred from trying him because it has violated his sixth amendment right to a speedy trial." Dickerson, 816 F.2d at 226. However, requesting an order granting Petitioner a prompt trial is a proper request for pre-trial habeas relief. "Under Braden this request may be considered by pre-trial habeas provided that the state courts have had an opportunity to rule on the issue." Id. at 228. "[T]here is a distinction between a petitioner who seeks to `abort a state proceeding or to disrupt the orderly functioning of state judicial processes' by litigating a speedy trial defense to a prosecution prior to trial, and one who seeks only to enforce the state's obligation to bring him promptly to trial." Id. at 226 (quoting Brown, 530 F.2d at 1283). "This distinction apparently turns upon the type of relief sought: an attempt to dismiss an indictment or otherwise prevent a prosecution is of the first type, while an attempt to force the state to go to trial is of the second." Brown, 530 F.2d at 1283. "While the former objective is normally not attainable through federal habeas corpus, the latter is. . . ." Id. Here, Petitioner seeks an order that he be brought to trial.6

However, in order to obtain habeas relief, Petitioner is required to exhaust his available state remedies. Dickerson, 816 F.2d at 225 (stating "federal courts should abstain from the exercise of . . . jurisdiction if the issues raised in the petition may be resolved either by trial on the merits in the state court or by other state procedures available to the petitioner"); Brown, 530 F.2d at 1283 (5th Cir. 1976). "The exhaustion doctrine of section 2241(c)(3) was judicially crafted on federalism grounds in order to protect the state courts' opportunity to confront and resolve initially any constitutional issues arising within their jurisdictions as well as to limit federal interference in the state adjudicatory process." Id. "In order for a petitioner proceeding pursuant to § 2241 to exhaust his available state remedies, he would need to present the grounds of his federal habeas petition to the Mississippi Supreme Court." See Hudson v. Mississippi, 2009 WL 2487930, at *1 (S.D. Miss. Aug. 12, 2009).

An Amite County Circuit Court Order signed on September 6, 2016, indicates that Petitioner has filed numerous pleadings seeking a speedy trial in his two criminal matters in Amite County, in addition to many filings in the Mississippi Supreme Court. See [1] at 17-18. This Order also outlines the sequence of events in Petitioner's criminal matters:

In that order, the court found that because Badger was outside the jurisdiction of the Amite County Circuit Court in the Arkansas correctional system "that his numerous motions for a speedy trial should be stayed, pending his availability to the jurisdiction of the court." See id.

After the circuit court stayed the motions for a speedy trial, Petitioner filed a Writ of Mandamus and an Application for an Interculpatory [sic] Appeal in the Mississippi Supreme Court. See [1] at 20; [10-1]. The Mississippi Supreme Court issued an order directing the circuit court judge and 6th Circuit Court District Attorney's Office to specifically address how this stay complies with Smith v. Hooey, 393 U.S. 374, 383 (1969), which states that "[u]pon the petitioner's demand, [a state] ha[s] a constitutional duty to make a diligent, good-faith effort to bring him before the . . . court for trial."8 The responses indicated that Petitioner could have proceeded to trial in Mississippi, but instead requested and voluntarily agreed to go to Arkansas so that he could face criminal charges there, with the understanding that he would return to Mississippi upon resolution of the Arkansas charges.9 On December 6, 2016, the Mississippi Supreme Court denied the "Writ of Mandamus and the Application for an Interculpatory [sic] Appeal," and the stay remained in place. Petitioner then filed a "Motion for Reconsideration of Mandamus and Interculpatory [sic] Appeal," which the supreme court denied on March 1, 2017. See [10-3]10

Petitioner's motions pertaining to a request for a speedy trial remained stayed in the Amite County Circuit Court pending his availability in the jurisdiction. The State has represented that it intended to bring petitioner back to Mississippi for trial in one of his criminal matters, and it has now done so. One of petitioner's criminal matters has been set for trial by court order for July 25, 2017, and he has been brought back to Amite County. See Order Setting Trial [14-5]; see Change of Address [18]. Now that he is back in the jurisdiction, state remedies via motions in the state trial court are now available to him, and motions can be addressed in due course by the circuit court. See Response [14]11 Accordingly, as petitioner may now seek redress in the state trial court, the motion [5] to dismiss for failure to exhaust state court remedies should be GRANTED.

RECOMMENDATION

For the reasons stated above, it is the recommendation of the undersigned that Respondents' Motion to Dismiss [5] be GRANTED, and this petition be dismissed without prejudice.

NOTICE OF RIGHT TO OBJECT

In accordance with the rules and 28 U.S.C. § 636(b)(1), any party within fourteen days after being served a copy of this recommendation, may serve and file written objections to the recommendations, with a copy to the judge, the magistrate judge and the opposing party. The District Judge at the time may accept, reject or modify in whole or part, the recommendations of the Magistrate Judge, or may receive further evidence or recommit the matter to this court with instructions. The parties are hereby notified that failure to file written objections to the proposed findings, conclusions, and recommendations contained within this report and recommendation within fourteen days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the proposed factual findings and legal conclusions accepted by the district court to which the party has not objected. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).