United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. Litkovitz, United States Magistrate Judge
a pretrial detainee, has filed a petition for a writ of
habeas corpus in connection with his February 2018 arrest by
the Middletown Police Department on three counts of armed
robbery and having a gun while under disability. (Doc. 1 at
PageID 2). Petitioner contends that he was arrested without
probable cause, was denied bond, and has been held without an
indictment. (See Id. at PageID 2-3).
Because petitioner is a pretrial detainee, the undersigned
construes the instant petition to be a 28 U.S.C. § 2241
petition. See 28 U.S.C. § 2241(c)(3).
April 30, 2018, this Court entered an Order to show cause why
the instant action should not be dismissed without prejudice
as premature or on the ground that petitioner has not
exhausted available state court remedies. (Doc. 4). 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). See
also Younger v. Harris, 401 U.S. 37, 46 (1971) (stating
well-settled principle 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"). Petitioner filed a
response on May 21, 2018. (Doc. 5).
review of the petition (Doc. 1), as well as petitioner's
response (Doc. 5) to the Court's April 30, 2018 show
cause Order (Doc. 4), the undersigned finds that the petition
is subject to dismissal without prejudice as premature and/or
on the ground that petitioner has not exhausted available
state court remedies. See Rule 4 of the Rules
Governing Section 2254 Cases in the United States District
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. See, e.g., Atkins v. People
of the State of Michigan, 644 F.2d 543, 546-47 (6th Cir.
1981) (recognizing exception to Younger abstention
doctrine when the petitioner seeks a speedy trial); Delk
v. Atkinson, 665 F.2d 90, 93 (6th Cir. 1981)
(recognizing exception to Younger abstention
doctrine when the petitioner seeks to avoid a second trial on
the ground that it would violate the Double Jeopardy Clause);
Turner v. Tennessee, 858 F.2d 1201, 1205 (6th Cir.
1988), vacated on other grounds, 492 U.S. 902 (1989)
(recognizing exception to Younger abstention
doctrine 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). None of these exceptions
apply here. Nor does it appear that petitioner has 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
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
DAYS after being served with a copy thereof. Failure
to make objections in accordance with this procedure may
forfeit rights on appeal. See Thomas v. Am, 474 U.S.
140 (1985); United States v. Walters, 638 F.2d 947
(6th Cir. 1981).