United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER SUMMARILY DISMISSING THE PETITION
FOR WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF
APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA
L. LUDINGTON, UNITED STATES DISTRICT JUDGE.
Petitioner, Damarkus Dean Jeffries, presently confined at the
Wayne County Jail in Detroit, Michigan, has filed a pro
se application for a writ of habeas corpus pursuant to
28 U.S.C. § 2241. ECF No. 1. Petitioner is a pre-trial
detainee who is awaiting trial on a charge of armed robbery
in the Wayne County Circuit Court. Because Petitioner's
criminal case is currently pending in the state courts,
Jeffries' petition will be summarily denied.
has yet to be convicted of any criminal charges in this case.
In the absence of “special circumstances, ”
federal habeas corpus relief is not available to review the
merits of an affirmative defense to a state criminal charge
prior to a judgment of conviction by a state court.
Braden v. 30th Judicial Circuit Court of
Kentucky, 410 U.S. 484, 489 (1973). A state criminal
case is therefore ordinarily ripe for federal habeas review
only after the defendant has been tried, convicted,
sentenced, and has pursued his or her direct appeals.
Allen v. Attorney General of the State of Maine, 80
F.3d 569, 572 (1st Cir. 1996); See also Hoard v. State of
Michigan, No. 2005 WL 2291000, *1 (E.D. Mich. Sept. 19,
2005). Although federal courts have jurisdiction to hear
pretrial habeas corpus petitions, a federal court should
normally abstain from exercising this jurisdiction to
consider a pretrial habeas petition if the issues raised in
the petition may be resolved either by trial in the state
courts or by other state procedures available to the
petitioner. See Atkins v. People of the State of
Michigan, 644 F.2d 543, 545-546 (6th Cir. 1981). Where a
habeas petitioner's claims, if successful, would be
dispositive of pending state criminal charges, the claims may
be exhausted only by presenting the issues at the trial in
state court, including claims that provide an affirmative
defense to the criminal charges and claims that would
“abort a state criminal proceeding, dismiss an
indictment, or prevent a prosecution.” Moore v.
United States, 875 F.Supp. 620, 622 (D. Neb. 1994). The
practical effect of this exhaustion requirement is that
review of dispositive claims in habeas is not available prior
to a state trial. Id.
are several exceptions to the rule that prejudgment habeas
relief is unavailable to a state prisoner. One exception to
this general rule is a claim that an impending state trial
would violate the Double Jeopardy clause of the federal
constitution. See Klein v. Leis, 548 F.3d 425, 430,
n. 2 (6th Cir. 2008); Moore, 875 F.Supp.
at 622, n. 2. Petitioner does not allege that any pending
state court charges violate his rights under the Double
exception permits pretrial habeas petition wherein a state
prisoner asserts his or her speedy trial rights for the sole
purpose of seeking a writ of habeas corpus that would order
the state to bring the prisoner to trial in a timely manner.
See Atkins v. People of the State of Michigan, 644
F.2d at 547. Notably, even in this instance, state court
remedies must be exhausted. Petitioner does not assert his
speedy trial rights in the current petition.
even if a federal habeas corpus petition would be proper in
this case, Petitioner is still required to exhaust all
available state court remedies. See Braden, 410 U.S.
at 489-91; see also Urbina v. Thoms, 270 F.3d 292,
295, n. 1 (6th Cir.2001); Atkins, 644 F.2d at
546-47. A habeas petitioner has the burden of proving that he
or she has exhausted his or her state court remedies. See
Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). Federal
habeas corpus relief is unavailable to a state prisoner who
fails to allege that he or she has exhausted his or her
available state court remedies. See Granville v.
Hunt, 411 F.2d 9, 11 (5th Cir. 1969). Petitioner does
not allege that he has exhausted his state court remedies
with respect to any pending criminal charges. The habeas
corpus statute governing pretrial relief requires the
exhaustion of state court remedies. See Dickerson v.
State of La., 816 F.2d 220, 225 (5th Cir. 1987). See
also Dillon v. Hutchinson, 82 F. App'x. 459, 461-62
(6th Cir. 2003) (pretrial habeas petitioner not entitled to
habeas relief when he failed to exhaust his claim with the
state courts); Schofs v. Warden, FCI, Lexington, 509
F.Supp. 78, 82 (E.D. Ky. 1981) (where a habeas petitioner has
not properly exhausted his state judicial remedies with
respect to his motion to dismiss state charges, the district
court would refrain from considering the merits of
petitioner's claims concerning those charges). Because
Petitioner has not exhausted his state court remedies, he is
not entitled to a writ of habeas corpus. Dickerson,
816 F.2d at 228.
the application makes clear that Petitioner is not currently
entitled to habeas relief, the habeas petition will be
summarily denied. Blanck v. Waukesha County, 48
F.Supp.2d 859, 862 (E.D. Wis. 1999)(citing to 28 U.S.C.
following reasons, Petitioner will also be denied a
certificate of appealability. 28 U.S.C. § 2253 governs
appeals in habeas corpus proceedings. Whether
petitioner's habeas corpus petition was brought under
§ 2254 or brought under § 2241, he must obtain a
certificate of appealability before appealing this
Court's denial of his habeas petition. See
§ 2253(c)(1)(A); Greene v. Tennessee Dep't of
Corrections, 265 F.3d 369, 372 (6th Cir. 2001) (a state
prisoner who seeks habeas corpus relief under § 2241
must obtain a certificate of appealability to bring an
appeal); Stringer v. Williams, 161 F.3d 259, 262
(5th Cir. 1998) (pretrial detainee who challenged pending
state prosecution pursuant to § 2241 was required to
obtain a certificate of appealability).
2253(c)(2) states, in pertinent part: “A certificate of
appealability may issue . . . only if the applicant has made
a substantial showing of the denial of a constitutional
right.” See also Lyons v. Ohio Adult Parole
Auth., 105 F.3d 1063, 1073 (6th Cir. 1997). “The
district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” Rules Governing § 2254 Cases, Rule
11(a), 28 U.S.C. foll. § 2254. Petitioner has failed to
make a substantial showing of the denial of a federal
constitutional right. Further, jurists of reason would not
find this Court's resolution of petitioner's claims
to be debatable nor would they conclude that Petitioner
should receive encouragement to proceed further. See
Myers v. Straub, 159 F.Supp.2d 621, 629 (E.D. Mich.
2001). Petitioner will be denied a certificate of
appealability. Petitioner will also be denied leave to appeal
in forma pauperis because the appeal would be
it is ORDERED that the petition for a writ
of habeas corpus, ECF No. 1, is DISMISSED without
further ORDERED that a certificate of
appealability and permission to appeal ...