United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE.
has filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241. (Doc. 1). For the reasons stated
below, the petition should be dismissed.
brings the petition in connection with a state court criminal
action currently pending in the Hamilton County Court of
Common Pleas. Attached to the petition is a bill of
particulars and indictment issued in Case No. B-1705754,
charging petitioner and five other defendants with multiple
counts of tampering with records, theft, and unauthorized use
of property. (See Doc. 1 at PagelD 20-26,
34-A7). Petitioner alleges that "[s]ince
November 8th, 2017 my liberty has been severely restrained
(along with my family members) as a result of being
fraudulently indicted and having an arrest warrant issued
against me, without probable cause, for exercising my
unalienable rights to possess and own property." (Doc. 1
at PagelD 1-2). It appears from the petition, that petitioner
is currently a fugitive from justice.
initial matter, Fed.R.Civ.P. 11 requires that every pleading,
written motion, and other paper shall be signed by the party
if not represented by counsel. 28 U.S.C. § 2242 further
specifies that an "application for a writ of habeas
corpus shall be in writing signed and verified by the person
for whose relief it is intended or by someone acting in his
behalf." In this case, the petition is not signed by
petitioner. Instead, the petition is signed by Kijai Khamisi.
(See Doc. 1 at PagelD 12). Attached to the petition
is a durable power of attorney form, purporting to give Kijai
Khamisi authority to handle all of petitioner's legal
matters. (Id. at PagelD 14-19). However, it does not
appear that Kijai Khamisi is an attorney licensed to practice
law in this Court. Kijai Khamisi has likewise not been shown
to have authority to act as a "next friend" of
petitioner. See Tate v. United States, 72 Fed.Appx.
265, 266 (6th Cir. 2003) (setting forth requirements for a
putative "next friend"). Although the Court
generally would enter a deficiency order to allow petitioner
to correct this deficiency, such an order is not warranted
here because the petition is otherwise subject to dismissal.
pretrial detainee, who has exhausted all available state
court remedies as a prelude to seeking federal habeas relief,
may seek federal habeas relief under 28 U.S.C. § 2241.
See Braden v. 30th Judicial Circuit Court of
Kentucky, 410 U.S. 484, 489-90 (1973); Atkins v.
Michigan, 644 F.2d 543, 546-47 (6th Cir. 1981). However,
it is well-settled that a federal court should not interfere
in pending state court criminal proceedings absent the threat
of "irreparable injury" that is "both great
and immediate." Younger v. Harris, 401 U.S. 37,
46 (1971). Abstention from adjudicating the merits of an
affirmative defense to a state criminal charge prior to the
state court's entry of the final judgment of conviction
is justified by considerations of comity. Atkins,
644 F.2d at 546. Therefore, intrusion into state proceedings
already underway is warranted only in extraordinary
circumstances. Braden, 410 U.S. at 489 (1973);
Atkins, 644 F.2d at 546. Furthermore, even if
extraordinary circumstances exist to warrant federal court
intervention into on-going state criminal prosecutions, the
petitioner must exhaust all available state court remedies
before seeking federal habeas relief See, e.g.,
Braden, 410 U.S. at 490; Atkins, 644 F.2d at
Sixth Circuit has recognized exceptions to the
Younger abstention doctrine in only three scenarios:
(1) when the petitioner seeks a speedy trial,
Atkins, 644 F.2d at 546-47; (2) when the petitioner
seeks to avoid a second trial on the ground that it would
violate the Double Jeopardy Clause, Delk v.
Atkinson, 665 F.2d 90, 93 (6th Cir. 1981); and (3) when
the petitioner seeks to challenge the State's attempt to
retry him rather than permit him to accept an initial plea
offer originally rejected due to ineffective assistance of
counsel, Turner v. Tennessee, 858 F.2d 1201, 1205
(6th Cir. 1988), vacated on other grounds, 492 U.S.
902 (1989). See, e.g., Pruitt v. Ohio, No.
1:10cv313, 2010 WL 2607246, at *2 (S.D. Ohio May 19, 2010)
(Hogan, M.J.) (Report & Recommendation),
adopted, 2010 WL 2620804 (S.D. Ohio June 25, 2010)
(Barrett, J.); Jenkins v. Kentucky, Civ. Act. No.
14-31-HRW, 2014 WL 2758762, at *2 (E.D. Ky. June 3, 2014)
(citing and quoting Simpson v. Jones, No.
11-cv-422-JBC-CJS, 2012 WL 3912755, at *2-3 (E.D. Ky. July
16, 2012) (Report & Recommendation), adopted,
2012 WL 3912738 (E.D. Ky. Sept. 7, 2012)); Coleman v.
Jones, No. 3:10cvl63, 2010 WL 1643276, at *3 (E.D. Tenn.
Apr. 21, 2010); Robinson v. Michigan, No. LO9cv23l,
2009 WL 1067245, at *1 (W.D. Mich. Apr. 17, 2009). None of
those exceptions apply here. Petitioner's claims do not
constitute the type of "extraordinary
circumstances" recognized by the Sixth Circuit that
would permit this Court to intervene in the pending state
criminal trial proceedings.
event, even assuming, arguendo, that extraordinary
circumstances exist to justify this Court's intervention
in the ongoing state criminal proceedings, it appears that it
is subject to dismissal because petitioner has not exhausted
any available state court remedies before applying for
federal habeas corpus relief
IS THEREFORE RECOMMENDED THAT:
Petitioner's pro se petition for a writ of habeas corpus
be DISMISSED without prejudice to refiling
after petitioner has exhausted all available state court
certificate of appealability should not issue because, for
the foregoing reasons, petitioner has not made a substantial
showing of the denial of a constitutional right that is
remediable at this juncture in this proceeding. See
28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
Court certify pursuant to 28 U.S.C. § 1915(a)(3) that
with respect to any application by petitioner to proceed on
appeal in forma pauperis, an appeal of any Order
adopting this Report and Recommendation would not be taken in
"good faith, " and therefore DENY
petitioner leave to appeal in forma pauperis. See
Fed. R. App. P. 24(a); Kincade v. Sparkman, 117 F.3d
949, 952 (6th Cir. 1997).
to Fed.R.Civ.P. 72(b), WITHIN 14 DAYS after
being served with a copy of the recommended disposition, a
party may serve and file specific written objections to the
proposed findings and recommendations. This period may be
extended further by the Court on timely motion for an
extension. Such objections shall specify the portions of the
Report objected to and shall be accompanied by a memorandum
of law in support of the objections. If the Report and
Recommendation is based in whole or in part upon matters
occurring on the record at an oral hearing, the objecting
party shall promptly arrange for the transcription of the
record, or such portions of it as all parties may agree upon,
or the Magistrate Judge deems sufficient, unless the assigned
District Judge otherwise directs. A party may respond to
another party's objections WITHIN 14