Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Khamisi v. State

United States District Court, S.D. Ohio, Western Division

March 1, 2018

STATE OF OHIO, et al., Respondents.

          Barrett, J.


          Stephanie K. Bowman, United States Magistrate Judge

         Petitioner, a pretrial detainee at the Hamilton County, Ohio, Justice Center, 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.[1]

         Plaintiff 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 No. B-1705754, charging petitioner and five other defendants with multiple counts of tampering with records, theft, and unauthorized use of property. (See Doc. 1-2 at PageID 27-33, 35-47).[2] Petitioner alleges that he is “in custody in violation of the Constitution or Laws of the United States . . . as a result of being fraudulently indicted and having an arrest warrant issued against [him], without probable cause, for exercising [his] unalienable rights to possess and own property.” (Doc. 1 at PageID 2). Petitioner also alleges that the state trial judge is “violating [his] rights to access the Court and to properly defend [himself]” by allegedly “order[ing] that any papers filed regarding [petitioner] by the Court not be accessible to [him] and that any filings made on [his] behalf not be accepted by the Hamilton County Court of Common Pleas criminal clerk desk or his chamber administration.” (Doc. 1 at PageID 3-4).

         As an 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 PageID 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. (See Doc. 1-1 at PageID 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 F. App'x 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.

         A 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 546.

         The 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. 3:10cv163, 2010 WL 1643276, at *3 (E.D. Tenn. Apr. 21, 2010); Robinson v. Michigan, No. 1:09cv231, 2009 WL 1067245, at *1 (W.D. Mich. Apr. 17, 2009). None of those exceptions apply here.[3] 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.

         In any 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.


         1. 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 remedies.

         2. A 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).

         3. The 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).

         4. The Clerk of Court is DIRECTED to send a copy of this Report and Recommendation to petitioner Jelani Khamisi at the address provided to the Court in this case as well as to the Hamilton County Justice Center ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.