United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO
DISMISS, DISMISSING WITHOUT PREJUDICE THE PETITION FOR WRIT
OF HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND
DENYING PETITIONER'S PENDING MOTIONS
H. CLELAND UNITED STATES DISTRICT JUDGE
Scott Libby filed a pro se habeas corpus petition
under 28 U.S.C. § 2241, alleging a violation of his
rights under the Double Jeopardy Clause. He has also filed an
assortment of motions to seeking to amend his petition and
requesting injunctive relief. Respondent filed a motion to
dismiss on the ground that Petitioner has not exhausted his
state court remedies. For the reasons explained below, the court
will grant the motion to dismiss, deny Petitioner's
remaining motions, and deny a certificate of appealability.
is awaiting trial in Washtenaw County Circuit Court for
charges of first-degree home invasion, armed robbery, and
conspiracy to commit first-degree home invasion. His first
trial for these charges ended in a mistrial. Petitioner seeks
habeas relief on the ground that the Double Jeopardy Clause
prohibits his retrial. Petitioner is presently in the custody
of the Michigan Department of Corrections for convictions
unrelated to the pending charges. He is serving a 25 to 50
years sentence for second-degree murder, a 15 to 30 years
sentence for assault with intent to commit murder, and a
2-year sentence for possession of a firearm during the
commission of a felony.
Petition for Writ of Habeas Corpus
28 U.S.C. § 2241 confers upon federal courts
jurisdiction to consider pretrial habeas corpus petitions.
Atkins v. Michigan, 644 F.2d 543, 546 (6th Cir.
1981). A federal court “should abstain from
the exercise of that jurisdiction if the issues raised in the
petition may be resolved either by trial on the merits in the
state courts or by other state procedures available to the
petitioner.” Id. The Sixth Circuit has
approved of a federal court's consideration of a pretrial
§ 2241 habeas petition in three circumstances: (1) when
the petitioner seeks a speedy trial, Atkins, 644
F.2d at 546-47; (2) when a petitioner seeks to avoid a second
trial on double jeopardy grounds, Delk v. Atkinson,
665 F.2d 90, 93 (6th Cir. 1981); and (3) when a petitioner
faces prejudice from prior ineffective assistance of counsel
and due process violations on retrial, Turner v.
Tennessee, 858 F.2d 1201, 1204 (6th Cir. 1988),
vacated on other grounds, 492 U.S. 902 (1989).
petitioner, however, must still exhaust state court remedies
before filing a § 2241 petition under any of these
exceptions. Delk, 665 F.2d at 93 (holding that a
pretrial detainee may file a § 2241 petition on double
jeopardy grounds after state remedies are
exhausted). Allowing state courts the first opportunity to
correct a constitutional violation (before intrusion of a
federal court) reduces friction between state and federal
court systems. O'Sullivan v. Boerckel, 526 U.S.
838, 842 (1999). The requirement that a habeas petitioner
exhaust state court remedies before seeking relief in federal
court “protect[s] the state courts' opportunity to
confront initially and resolve constitutional issues arising
within their jurisdictions and to limit federal judicial
interference in state adjudicatory processes.”
Atkins, 644 F.2d at 546. State prisoners in Michigan
must raise each claim in the Michigan Court of Appeals and in
the Michigan Supreme Court before seeking federal habeas
corpus relief. See Manning v. Alexander, 912 F.2d
878, 881 (6th Cir. 1990).
admits that he did not exhaust his state court remedies but
argues that the exhaustion requirement should be excused
because the trial court created an impediment to exhaustion.
Specifically, Petitioner argues that the trial court failed
to rule on his objection to the declaration of a mistrial. He
maintains that until the trial court decides his objection he
will be unable to file an interlocutory appeal in the
Michigan Court of Appeals. Petitioner's objection to the
declaration of a mistrial did not address his subsequent
retrial. To exhaust the pending claim, Petitioner may file a
pretrial motion to dismiss the pending charges on double
jeopardy grounds. If the motion is denied, he may file an
interlocutory appeal with the Michigan appellate courts.
See People v. Reid, 317 N.W.2d 589, 592 (Mich. Ct.
petition contains one unexhausted claim. Accordingly, it will
be dismissed without prejudice.
before the court are several motions filed by Petitioner.
First, Petitioner filed a “Motion to Expand the
Record” (ECF No. 12) in which he seeks an order
requiring Respondent to file additional portions of the state
court record or, in the alternative, to furnish him with the
entire state court record. Rule 5, Rules Governing Section
2254 Cases directs the respondent to file relevant portions
of the state court record along with the answer. The court
finds the records filed in this case by Respondent to be
Petitioner is not entitled to a free copy of the entire state
court record for use in a collateral attack on his criminal
conviction. See United States v. MacCollum, 426 U.S.
317, 322 (1976) (stating that a free transcript is not a
necessary concomitant of the writ of habeas corpus);
Smith v. United States, 421 F.2d 1300, 1301 (6th
Cir. 1970) (assuming, absent special circumstances, that
“a man in custody can recall sufficiently the
circumstances of a non-frivolous error to frame an
appropriate motion to vacate sentence”). Because
Petitioner has not shown a particularized need for the entire
state court record, the court will deny the request.
Petitioner filed three motions to amend or supplement his
petition. (ECF Nos. 13, 24, 27.) Petitioner's proposed
amendments would not alter the court's decision
dismissing the petition for failure to exhaust state court
remedies. Therefore, any amendment would be futile, and the