United States District Court, D. Maryland
DEBORAH K. CHASANOW United States District Judge.
5, 2016, the court received a 42 U.S.C. § 1983 complaint
packet from Derrick Toomer (hereinafter referred to as
“Toomer”), who is confined at the Roxbury
Correctional Institution. ECF No. 1. As in a previous case
filed by Toomer (Toomer v. McLane, Civil Action No.
DKC-14-3541), he claims of irregularities in his state court
criminal proceedings. ECF No. 1.
complains that Defendants, Assistant States Attorneys
responsible for prosecuting his criminal trial and Detective
Michael Moran, deliberately violated his constitutional
rights under the 5th, 6th, and 8th Amendments by engaging in
prosecutorial misconduct, witness tampering and perjury. ECF
No. 1, p. 3.
alleges that a one time anonymous caller to the police
station identified someone else as the murderer of the victim
in Toomer's case. He indicates that this information was
not made available during his first trial. He states that the
information was mischaracterized during his second trial when
testimony was offered that the information came from a
confidential informant who could not be located and who it
was determined was simply seeking money in exchange for
information. ECF No. 4, p. 3, ECF No. 6.
seeks a federal investigation into his claim as well as
compensatory and punitive damages. ECF No. 1, pp. 3 & 5;
ECF No. 4. Toomer has filed a motion for leave to proceed
in forma pauperis and because he appears indigent,
his motion shall be granted. His cause of action, however,
construed as a hybrid 28 U.S.C. § 2241 petition and 42
U.S.C. § 1983 complaint, shall be summarily dismissed.
Maryland Judiciary Case Search website confirms that on July
15, 2011, Plaintiff was charged in the Circuit Court for
Baltimore City with first degree murder and related offenses.
See State v. Toomer, Criminal No. 111196013 (Circuit
Court for Baltimore City); see
www.casesearch.courts.state.md.us/inquiry. On or about
July 19, 2013, Toomer was convicted. On December 22, 2014,
however, the criminal judgment was vacated and remanded for a
new trial by the Court of Special Appeals of Maryland.
Id. Plaintiff's second trial ended in a hung
jury. Id. His third trial is currently scheduled for
January 5, 2017. Id.
extent that Toomer seeks federal court intervention in his
pending state criminal re-trial, his case is construed as a
28 U.S.C. § 2241 petition for habeas corpus relief and
dismissed. Absent extraordinary circumstances, a federal
court must not interfere with ongoing state criminal
proceedings. See Younger v. Harris, 401 U.S. 37,
53-54 (1971); Cinema Blue of Charlotte, Inc., v.
Gilchrist, 887 F.2d 49, 50-53 (4th Cir. 1989) (district
courts should abstain from constitutional challenges to state
judicial proceedings if the federal claims have been or could
have been presented in an ongoing state judicial proceeding).
indicates that the instant case presents extraordinary
circumstances. In support of his contention, he points out
that he has twice been tried for the offense and has been
unable to obtain the information he seeks regarding the
anonymous caller/confidential informant. ECF No. 1, p. 5. In
further support of his claim that the case presents
extraordinary circumstances, he documents the efforts he has
made to bring his complaints to the appropriate authorities
including complaints with the Attorney Grievance Commission
and the U.S. Department of Justice. ECF No. 1-1, p. 4-6, 16.
Toomer has previously been advised, abstention in favor of
state judicial proceedings is required if the proceedings are
ongoing, implicate important state interests, afford an
adequate opportunity to raise the federal questions, and the
federal relief sought would interfere in some manner with the
state court litigation presented. Middlesex County Ethics
Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432
(1982); Brewsome v. Broward County Pub. Defenders,
304 Fed.Appx. 814, 816 (11th Cir. 2008) (per curiam). In the
pre-trial context, federal courts must abstain from
exercising jurisdiction over a claim that may be resolved
through trial on the merits or by other state procedures
available for review of the claim. See Braden v. 30th
Judicial Circuit Court, 410 U.S. 484, 489-90 (1973).
pre-trial habeas relief is only available if a petitioner has
exhausted state court remedies and “special
circumstances” justify federal review. See
Dickerson v. Louisiana, 816 F.2d 220, 226-29 (5th Cir.
1987). While the phrase “special circumstances”
lacks any definition, courts have looked to whether
procedures exist which would protect a petitioner's
constitutional rights without pre-trial intervention.
Moore v. De Young, 515 F.2d 437, 449 (3d Cir. 1975).
Where a threat to the petitioner's rights may be remedied
by an assertion of an appropriate defense in state court, no
special circumstances is shown. Id.; see also Drayton v.
Hayes, 589 F.2d 117, 121 (2d Cir. 1979) (double jeopardy
claim entitled to pre-trial habeas intervention since
“the very constitutional right claimed ... would be
violated” if petitioner were forced to go to trial).
Where the right may be adequately preserved by orderly
post-trial relief, special circumstances are likewise
nonexistent. Moore, 515 F.2d at 449. Habeas corpus
relief will be denied without prejudice.
to the extent that Toomer seeks damages under a 42 U.S.C.
§ 1983 civil rights action related to his confinement
arising out of the Baltimore City charges, his convictions,
and the remand and retrial of his case, he is barred from so
doing so at this time. Assuming that a colorable
constitutional claim has been stated, where an inmate's
success in a § 1983 damages action would implicitly call
into question the validity of the underlying conviction or
duration of confinement, the inmate must first “achieve
favorable termination of his available state, or federal
habeas, opportunities to challenge the underlying conviction
or sentence.” Muhammad v. Close, 540 U.S. 749,
751 (2004) (citing Heck v. Humphrey, 512 U.S. 477
(1994)). Although Toomer's convictions were overturned,
he is being retried. For reasons set out herein, this hybrid 42
U.S.C. § 1983 civil rights action is hereby dismissed
 When a district court dismisses a
petition for habeas corpus solely on procedural grounds, a
certificate of appealability will not issue unless the
petitioner can demonstrate both “(1) ‘that
jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a
constitutional right' and (2) ‘that jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling.'” Rouse v.
Lee, 252 F.3d 676, 684 (4th Cir. 2001) (quoting
Slack v. ...