Tran, Hung Nam v. Bartow, Bryan

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
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, Appeal from the United States District
Petitioner-Appellant, Court for the Eastern District of
Wisconsin
v.
No. 05-C-1082
BRYAN BARTOW,
Respondent-Appellee. 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.
*
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).
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.