United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
Stephanie K. Bowman, United States Magistrate Judge
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.
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). 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).
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.
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. 3:10cv163, 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. 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).
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 ...