Garey Smith v. Phillip Kern
OPINION: the district court's denial of a writ of habeas corpus to petitioner is AFFIRMED, decision not for publication. Eric L. Clay, AUTHORING Circuit Judge; Helene N. White, Circuit Judge and Joseph M. Hood, U.S. District Judge for the Eastern District of Kentucky, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0336n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DEBORAH S. HUNT, Clerk
Apr 04, 2013
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF OHIO
JOHN COLEMAN, Warden,
CLAY and WHITE, Circuit Judges; HOOD, District Judge.*
CLAY, Circuit Judge. In 2002, an Ohio jury found Petitioner Garey Smith guilty of
murder, attempted murder, and numerous felonious assaults arising out of the shooting of three men
and the shooting death of a fourth. Following an Ohio appellate court’s reversal of his convictions
based on the denial of Petitioner’s right to self-representation, the case was remanded for a new trial.
Petitioner then filed this petition for a writ of habeas corpus, purportedly under 28 U.S.C. § 2254,
claiming violations of his rights under the Double Jeopardy Clause. The district court stayed the
resolution of the petition until the end of Petitioner’s state court proceedings. After the conclusion
of the state court proceedings, the district court denied Petitioner his requested habeas relief. On a
motion for reconsideration, however, the district court granted Petitioner a certificate of appealability
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
on his double jeopardy claims. For the reasons that follow, we AFFIRM the district court’s denial
of a writ of habeas corpus to Petitioner.
Petitioner Garey Smith was indicted on eleven counts stemming from a shooting incident
involving four victims that occurred on May 14, 2001. Petitioner was charged with the murder of
Jimmie Gordon; attempted murder and two counts of felonious assault as to Jeffrey King; attempted
murder and two counts of felonious assault as to Steven Franklin; attempted murder and two counts
of felonious assault as to Andre Ridley; and, finally, a weapons charge. The jury found Petitioner
guilty on all charges except the attempted murder of King.
Central to one of his claims in this appeal, Petitioner claims prosecutorial misconduct from
his first trial. Specifically, the prosecutor elicited testimony from Franklin about his non-use of
drugs when the prosecutor knew that Franklin had previously dealt crack cocaine. See State v. Fears,
715 N.E.2d 136, 143–46 (Ohio 1999); State v. Grant, No. C-9710001, 2001 Ohio App. LEXIS 1388,
at *7 (Ohio Ct. App. Mar. 23, 2001)). Next, the prosecutor elicited testimony that Franklin had been
shot from behind when his medical records, to which the prosecutor stipulated, indicated that all of
his bullet wounds were on the front of his body. Third, the prosecutor told the jury in his closing
argument that Gordon was seventeen years old, but he had previously elicited testimony from a
witness that Gordon was twenty-nine at the time of his death. Fourth, the prosecutor told the jury
that Petitioner had lied to them and elaborated: “It was one of the biggest bold-faced lies I ever have
heard in a courtroom. He looked at you, right in the eye, lied to you and never batted an eye . . . .”
(R. 126-14, at PID# 3473.) Additionally, the prosecutor claimed that had another bystander, Nick
Grant, been present when Petitioner came across Gordon, Franklin, King, and Ridley, Petitioner
would have shot Grant as well. Finally, the prosecutor attempted to bait Petitioner into losing his
MR. KRUMPELBECK [(Prosecutor)]:
. . . He gives you not one single reason. Did you hear
a reason why he went back over there?
THE DEFENDANT [(Petitioner)]:
I lived there.
On the evening of the fourteenth, did you? Are you
mad at me now?
You said you didn’t hear a reason. I live there.
Mr. Smith, please. Go ahead, Mr. Krumpelbeck.
I knew that was going to happen. I thought it was
going to happen yesterday. I was surprised it didn’t.
What I was showing, a little bit of the anger, I was
trying to bait him. I knew this would happen. I knew
he would respond. He couldn’t keep his mouth shut.
That’s what this is all about. He is an uncontrollable
(Id. at 3480–81 (emphasis added).) At no point, however, did Petitioner move for a mistrial because
of the prosecutor’s conduct.
During sentencing, the state trial judge merged, pursuant to Ohio Rev. Code § 2941.25(A),
Petitioner’s two felonious assault convictions into his attempted murder conviction with respect to
Franklin; his two felonious assault convictions with respect to King into each other; and his two
felonious assault convictions into his attempted murder conviction with respect to Andre Ridley.
Therefore, Petitioner was sentenced on two counts of attempted murder and one count each of
murder, felonious assault, and unlawful possession of a weapon, for which he received a total prison
term of forty-seven years to life.
Petitioner appealed his convictions to the Ohio Court of Appeals, asserting various bases,
including the denial of his right to self-representation and prosecutorial misconduct. In that appeal,
however, Petitioner did not challenge the sufficiency of the evidence with respect to any of his
convictions. The Ohio Court of Appeals found Petitioner’s self-representation claim meritorious and
ordered a new trial on that basis. State v. Smith (Smith I), No. C-020610, 2004 WL 102285, at *7
(Ohio Ct. App. Jan. 23, 2004). However, that court saw fit to comment on Petitioner’s prosecutorial
misconduct claim as well:
Although not central to the disposition of this appeal, we feel compelled to comment
on Smith’s allegations of prosecutorial misconduct during closing argument. We
agree that the prosecutor’s comments on the veracity of Smith, his admitted attempts
to bait Smith into losing his temper, and his comments on facts not in evidence were
improper. The prosecutor’s actions under other circumstances may have provided
a basis for reversal and the order of a new trial, but given our disposition of the first
assignment of error, this issue has been rendered moot.
On remand, Petitioner was recharged with the ten counts of which he had been found guilty
at his first trial. Petitioner filed a motion to dismiss these charges with the second state trial court
based, in part, on the prosecutorial misconduct from his first trial; however, he did not argue in that
motion that there was insufficient evidence in the first trial. Following a denial of that motion by
the second state trial court but prior to the commencement of the second state trial, Petitioner, then
proceeding pro se, filed this habeas petition in the United States District Court for the Southern
District of Ohio. The petition was styled as seeking relief under 28 U.S.C. § 2254. Proceedings on
the petition were stayed pending the termination of the state court proceedings.1 Petitioner appealed
that decision to this Court, and we reinstated the case because Petitioner had since exhausted
available state-court remedies. Smith v. Jackson, 229 F. App’x 405, 407 (6th Cir. 2007) (per
Following our 2007 Smith decision, the district court reinstated Petitioner’s habeas petition.
The petition was referred to a magistrate judge, who recommended denying Petitioner habeas relief.
See Smith v. Warden, S. Ohio Corr. Facility, No. 1:04cv579, 2009 WL 6698609 (S.D. Ohio Jan. 5,
As to Petitioner’s misconduct-based double jeopardy claim, the magistrate judge
Briefly, as the subsequent state court proceedings are not central to the current appeal, the
second state trial resulted in a hung jury on the murder and remaining two attempted murder counts,
but the jury found Petitioner guilty of six counts of felonious assault and the weapons charge.
Petitioner appealed this second set of convictions to the Ohio Court of Appeals, which reversed his
felonious assault convictions relating to King and remanded the other counts for resentencing. See
State v. Smith (Smith II), 858 N.E.2d 1222 (Ohio Ct. App. 2006). On the second remand, Petitioner
again filed a motion to dismiss based on double jeopardy, which was denied. The King felonious
assault counts were dismissed, and Petitioner was resentenced to a total of thirty-six years in prison:
eight years for each of the four remaining felonious assault counts, one year on the weapons charge,
and three years for the merged attendant firearms specifications, all to run consecutively.
On his third trip to the Ohio Court of Appeals, the court affirmed in part but vacated and
remanded the consecutive sentences for the four felonious assault convictions in light of State v.
Cabrales, 886 N.E.2d 181 (Ohio 2008). See State v. Smith (Smith III), No. C-070216, 2008 WL
2154770, at *3 (Ohio Ct. App. May 23, 2008). On the third remand, the state court merged the two
Franklin felonious assault counts together as well as the two Ridley felonious assault counts together
and sentenced Petitioner to nineteen years in prison: eight years for each set of merged felonious
assault counts and three years for the previously merged firearms specifications, all to run
In separate proceedings, Ohio moved to retry Petitioner on the murder and attempted murder
charges on which the second jury had hung. The trial court dismissed the attempted murder charges,
and a third jury eventually acquitted Petitioner of the murder charge.
Additionally, after exhausting his state court appeals, Petitioner filed another habeas petition
challenging his convictions and sentences from the third remand. The district court denied that
petition, and we affirmed. See Smith v. Coleman, 453 F. App’x 625 (6th Cir. 2011).
recommended denying it based on the lack of clearly established law. As to his merger-based double
jeopardy claim, the magistrate judge recommended finding it moot. The district court agreed with
the magistrate judge’s recommendation and denied Petitioner habeas relief. See Smith v. Warden,
S. Ohio Corr. Facility, No. 1:04cv579, 2010 WL 451060 (S.D. Ohio Feb. 8, 2010).
reconsideration, however, the district court issued a “certificate of appealability . . . with respect to
Petitioner’s claim that his retrial on criminal charges after his first conviction was reversed violates
the Double Jeopardy Clause.” Smith v. Warden, S. Ohio Corr. Facility, No. 1:04cv579, 2010 WL
2667418, at *3 (S.D. Ohio July 2, 2010).
STANDARD OF REVIEW
It is a familiar rule that this Court liberally construes pro se filings such as Petitioner’s.
Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011). Despite the fact that Petitioner filed his
petition under 28 U.S.C. § 2254, “a petitioner cannot forfeit or waive the standards that apply to
habeas petitions.” Phillips v. Court of Common Pleas, 668 F.3d 804, 809 n.1 (6th Cir. 2012); see
also Fisher v. Rose, 757 F.2d 789, 792 n.2 (6th Cir. 1985) (recognizing our ability to construe a
pretrial habeas petition filed under § 2254 as being brought under § 2241). Therefore, because his
petition was filed before his second trial and attacked his pretrial detention rather than a state court
judgment or conviction, his petition is “properly governed by [28 U.S.C.] § 2241” and subject to de
novo review.2 See Phillips, 668 F.3d at 810 n.3 (6th Cir. 2012).
Respondent’s argument that this petition should be reviewed under AEDPA’s deferential
standard because even though it was filed prior to a state court judgment, it was not considered until
after a judgment had been rendered, is unavailing. What determines our standard of review is the
nature of the claims raised and “the time [the petitioner] filed his petition,” Stow v. Murashige, 389
F.3d 880, 885 (9th Cir. 2004) (alteration omitted), not the “present status of the case pending against
The Fifth Amendment’s Double Jeopardy Clause, incorporated against the states in Benton
v. Maryland, 395 U.S. 784 (1969), “affords a defendant three basic protections: [i]t protects against
a second prosecution for the same offense after acquittal[; i]t protects against a second prosecution
for the same offense after conviction[; a]nd it protects against multiple punishments for the same
offense.” Ohio v. Johnson, 467 U.S. 493, 498 (1984) (internal quotation marks omitted). It does not,
however, “offer a guarantee to the defendant that the State will vindicate its societal interest in the
enforcement of the criminal laws in one proceeding.” Oregon v. Kennedy, 456 U.S. 667, 672 (1982).
Petitioner asserts two bases for his double jeopardy claim: (1) the prosecutorial misconduct in his
first trial; and (2) the merger under Ohio law of his felonious assault convictions for his first
sentencing and subsequent unmerging for his second trial.
Prosecutorial Misconduct Double Jeopardy Claim
The Supreme Court has held that the Double Jeopardy Clause generally “does not prevent
the government from retrying a defendant who succeeds in getting his first conviction set aside,
through direct appeal or collateral attack, because of some error in the proceedings leading to
conviction.” Lockhart v. Nelson, 488 U.S. 33, 38 (1988). Double jeopardy does, however, generally
bar re-prosecution “[w]here the trial is terminated over the objection of the defendant,” except if the
him,” Dickerson v. Louisiana, 816 F.2d 220, 224 (5th Cir. 1987); see also Jacobs v. McCaughtry,
251 F.3d 596, 597 (7th Cir. 2001) (per curiam) (holding that § 2241 was the proper statute for the
petitioner’s pretrial double jeopardy challenge). But see Jackson v. Coalter, 337 F.3d 74 (1st Cir.
2003). Any other rule would be unworkable. Given the long delays in the habeas process, of which
this case is but one example, a different rule would see many § 2241 petitions converted to petitions
under § 2254.
government can meet the manifest necessity standard (e.g., in the case of a hung jury). Kennedy, 456
U.S. at 672. Conversely, when “a mistrial [is] declared at the behest of the defendant,” there is also
generally no bar to re-prosecution. Id. In Kennedy though, the Court recognized that double
jeopardy will bar re-prosecution even if a defendant successfully moves for a mistrial “[o]nly where
the governmental conduct . . . [was] intended to ‘goad’ the defendant into moving for a mistrial.”
Id. at 676.
Petitioner urges us to expand Kennedy beyond the mistrial context to situations “where the
misconduct of the prosecutor is undertaken, not simply to prevent an acquittal, but to prevent an
acquittal that the prosecutor believed at the time was likely to occur in the absence of his
misconduct.” United States v. Wallach, 979 F.2d 912, 916 (2d Cir. 1992). We need not, however,
explore the outer bounds of double jeopardy’s protections to resolve Petitioner’s claim. The
situation that both Kennedy and Petitioner’s proposed rule seeks to obviate is where the prosecutor
“anticipates an acquittal[, but t]o stave off the acquittal and thus be able to retry the defendant, the
prosecutor commits an error” that forces a retrial. United States v. Catton, 130 F.3d 805, 806 (7th
Cir. 1997). Such action could allow a prosecutor to “try a defendant over and over again . . . until
finally he had enough evidence to have a good shot at a conviction.” Id. at 806. Therefore, the only
relevant intent to the double jeopardy inquiry is the prosecutor’s “intent to terminate the trial, not
intent to [secure a conviction] at this trial by impermissible means.” United States v. Oseni, 996
F.2d 186, 188 (7th Cir. 1993); see also Sanborn v. Parker, 629 F.3d 554, 580–81 (6th Cir. 2010);
cf. United States v. Thomas, 728 F.2d 313, 318 (6th Cir. 1984) (“[P]rosecutorial behavior will bar
a second trial only where such behavior was ‘intentionally’ calculated to cause or invite mistrial.”),
abrogated on other grounds by United States v. Carroll, 26 F.3d 1380 (6th Cir. 1994).
Petitioner’s best evidence of this requisite intent is the prosecutor’s statement that he was
“trying to bait” Petitioner into interrupting his closing argument. However, the prosecutor goes on
to say, “I knew this would happen. I knew he would respond. He couldn’t keep his mouth shut.
That’s what this is all about. He is an uncontrollable rage.” Taken together, these statements show
that the prosecutor was trying to goad Petitioner into responding in order to demonstrate to the jury
Petitioner’s problem in controlling his anger, which the prosecutor presumably thought would make
it more likely that they would find Petitioner guilty. This is the type of intent that is irrelevant for
double jeopardy purposes, see Oseni, 996 F.2d at 188, because the prosecutor is not attempting to
vitiate “the defendant’s valued right to complete his trial before the first jury,” Kennedy, 456 U.S.
at 673. This conclusion that the prosecutor was simply trying to secure a conviction is bolstered by
the other examples of prosecutorial misconduct that Petitioner relies on, as all of them seem to be
attempts to secure a conviction, not to induce a need for retrial. Therefore, because Petitioner cannot
demonstrate that the prosecutor acted with the requisite intent so as to implicate double jeopardy’s
bar against multiple prosecutions, see Oseni, 996 F.2d at 188, we conclude that habeas relief is not
proper on this basis.
Ohio Merger Double Jeopardy Claim
Petitioner’s second basis is more specific than his first. It relates only to the felonious assault
counts that were merged into more serious offenses, such as attempted murder, for the purpose of
sentencing after his first trial. This claim implicates Ohio’s merger doctrine. Specifically, under
Rule 32(C) of the Ohio Rules of Criminal Procedure, only “convictions” can be appealed. See State
v. Baker, 893 N.E.2d 163, 166 (Ohio 2008). Ohio defines a “conviction” as “consist[ing] of [a]
verdict and sentence.” State v. McGuire, 686 N.E.2d 1112, 1120 (Ohio 1997). Therefore, when
verdicts of allied offenses are merged for sentencing, see Ohio Rev. Code § 2941.25, a defendant
may seek reversal of only the count on which he was sentenced because he technically does not have
a conviction on the merged counts (i.e., the counts on which he did not receive a sentence). See, e.g.,
State v. Williams, 968 N.E.2d 27, 33 (Ohio Ct. App. 2011). Petitioner now claims that there was
insufficient evidence on his merged felonious assault counts and that his double jeopardy rights were
violated when he was retried on those counts at his second trial. See Burks v. United States, 437 U.S.
1, 18 (1978) (“[T]he Double Jeopardy Clause precludes a second trial once the reviewing court has
found the evidence legally insufficient.”)
Claims pursued in federal habeas must first be exhausted in state court. Phillips, 668 F.3d
at 810 & n.4. “[E]xhaustion requires that the same claim under the same theory be presented to the
state courts before raising it in a federal habeas petition.” Wagner v. Smith, 581 F.3d 410, 417 (6th
Cir. 2009). Petitioner concedes that he failed to present this insufficiency claim in his first state
appeal. However, he contends that because he did not receive an appealable conviction on the
merged felonious assault counts, he was barred from raising such a claim. Thus, Petitioner
essentially argues that raising this claim would have been futile, which operates as an exception to
the exhaustion requirement. See Turner v. Bagley, 401 F.3d 718, 724 (6th Cir. 2005). Therefore,
the question becomes whether Petitioner could have raised his insufficiency claims in his first state
appeal or, if, as he contends, the Ohio courts would not have had the power to reach arguments about
his merged felonious assault counts and exhaustion should be excused as futile.
Despite the initial persuasiveness of Petitioner’s futility argument, Ohio caselaw undermines
his argument. First, as a general matter, Ohio courts recognize that “when evidence is insufficient
to support an offense, such matter cannot be ignored merely because the appellate court is remanding
for retrial on other grounds.”3 State v. Donkers, 867 N.E.2d 903, 917–18 (Ohio Ct. App. 2007); see
also State v. Lovejoy, 683 N.E.2d 1112, 1119–20 (Ohio 1997). More germane to Petitioner’s
argument is State v. Griffin, 886 N.E.2d 921 (Ohio Ct. App. 2008), a case involving merged counts.
In Griffin, a jury found the defendant guilty of felony murder and voluntary manslaughter.
Id. at 923. At sentencing, the trial court merged the defendant’s voluntary manslaughter count into
the felony murder count and imposed a sentence only on the felony murder count. Id. Therefore,
the defendant only stood convicted on the felony murder count. The defendant appealed the felony
murder conviction and secured a reversal of that conviction based on improper jury instructions. Id.
at 924–26. In addition to the jury instruction argument, on which he prevailed, the defendant in
Griffin also contended that there was insufficient evidence to convict him of either felony murder
or voluntary manslaughter. Id. at 927. Because the case was being remanded for retrial, the state
appellate court needed to address the defendant’s arguments that there was insufficient evidence as
to both his felony murder count as well as his voluntary manslaughter count. Id. Only after finding
that sufficient evidence supported the jury’s verdicts as to both offenses did the appellate court
This approach accords with our “practice of reaching the sufficiency claim in situations
where defendants have alleged both that the evidence against them was insufficient and that their
trials were infected with procedural errors.” Patterson v. Haskins, 470 F.3d 645, 652 (6th Cir. 2006).
remand for a new trial. Id. at 927–28. Griffin provides an example of an Ohio case in which the
defendant had merged counts and the state appellate court nonetheless entertained arguments about
the insufficiency of the merged count.
Petitioner’s case squares with Griffin. Both Petitioner and Griffin sought reversal on grounds
that would not implicate double jeopardy, and both were successful in that respect. Compare Smith
I, 2004 WL 102285, at *7, with Griffin, 886 N.E.2d at 924–26. The relevant distinction for present
purposes is that while Petitioner failed to raise an insufficiency claim with respect to his merged
counts, the defendant in Griffin did. Because the insufficiency claim was raised, the Griffin court
addressed it. See Griffin, 886 N.E.2d at 927. Unlike the defendant in Griffin, Petitioner did not give
the Ohio courts an opportunity to review his insufficiency claim; an opportunity, Griffin shows, that
the Ohio courts would have been required to take. See Donkers, 867 N.E.2d at 917–18; see also
Griffin, 886 N.E.2d at 927.
Ohio cases, such as Williams, that involve an appellate court’s refusal to consider
insufficiency claims with respect to merged counts when affirming the trial court do nothing to
detract from Griffin and the general rule that insufficiency claims will be considered if raised.
Unlike in Griffin, the court in Williams rejected all of the defendant’s arguments regarding the
propriety of his conviction with respect to his “having-a-weapon” conviction. Williams, 968 N.E.2d
at 33. After so concluding, it declined to reach the defendant’s insufficiency arguments with respect
to his merged stolen property and carrying a concealed weapon counts, which had been merged with
the having-a-weapon count for sentencing. Id.
This result does not prove what Petitioner would like it to: that Ohio courts will not entertain
arguments about merged counts (which could then potentially excuse his failure to exhaust his
insufficiency claims). Double jeopardy is only implicated where there is a possibility of retrial or
resentencing. See Johnson, 467 U.S. at 498. In Ohio, when an appellate court affirms a defendant’s
conviction in its entirety, any error with respect to merged counts is rendered “harmless beyond a
reasonable doubt,” State v. Powell, 552 N.E.2d 191, 200 (Ohio 1990), superseded by constitutional
amendment on other grounds as noted in State v. Smith, 684 N.E.2d 668, 683 n.4 (Ohio 1997),
because the defendant does not stand convicted of those counts and faces no possibility of retrial on
those counts. Therefore, because in Williams there were to be no further proceedings, double
jeopardy was not implicated, and there was no need to address the defendant’s insufficiency
In conclusion, Griffin demonstrates that if a defendant raises an insufficiency claim with
respect to merged counts and there will be a retrial, Ohio courts will entertain and address such
arguments. It was therefore not futile for Petitioner to have presented his insufficiency arguments
as to his merged felonious assault counts to the state appellate court in his first appeal. As in Griffin,
if Petitioner had raised such arguments, they would have been addressed. Having failed to present
such arguments to the Ohio courts, our exhaustion requirement proves fatal to Petitioner’s request
for habeas relief. Phillips, 668 F.3d at 810. We therefore conclude that Petitioner was also not
entitled to a writ of habeas corpus on this basis because he failed to exhaust these arguments in state
court before presenting them to this Court. See Wagner, 581 F.3d at 417.
For the reasons stated above, we AFFIRM the district court’s denial of a writ of habeas
corpus to Petitioner.
HELENE N. WHITE, Circuit Judge, concurring. I join the affirmance of the district
court’s denial of Garey Smith’s habeas petition. However, I write separately to address the
appropriate standard of review. I agree that Smith’s petition was properly brought under § 2241
because at the time he filed it he was not “in custody pursuant to the judgment of a State court.” 28
U.S.C. § 2254(a). A habeas petition arises under § 2241 and de novo review applies—as opposed
to the Antiterrorism and Effective Death Penalty Act’s (AEDPA) deferential standard codified under
§ 22544 —when a pretrial detainee seeks habeas relief because the pretrial-detainee petitioner is not
in custody pursuant to a state-court judgment, but rather pursuant to an indictment. Phillips v. Court
of Common Pleas, Hamilton Cnty., Ohio, 668 F.3d 804, 809–10 (6th Cir. 2012). But subsequent to
the filing of this action, Smith was convicted in state court, has exhausted his appellate remedies,
and is currently serving his sentence. In appealing the denial of habeas relief, he asks us to vacate
his state-court convictions. The law is unclear whether a habeas court should continue to apply the
In relevant part, § 2254 provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings unless the adjudication of
the claim-(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d) (emphasis added).
§ 2241 de novo standard when the petitioner is subsequently convicted and is in custody pursuant
to a state-court judgment.
The cases cited by the majority contain language suggesting that the application of § 2254
or § 2241 is determined by the petitioner’s custody status at the time the habeas petition is filed. See
id. at 810 (“The First, Fifth, Ninth, and Tenth Circuits have concluded that the deference that
§ 2254(d) requires never applies to habeas petitions brought by pretrial detainees under § 2241, and
no circuit to our knowledge has held otherwise.” (citations omitted)); Stow v. Murashige, 389 F.3d
880, 882 (9th Cir. 2004) (“[W]e hold that Stow’s habeas petition is properly considered under 28
U.S.C. § 2241, not § 2254, because at the time Stow filed his petition he was not ‘in custody
pursuant to the judgment of a State court.’”); Dickerson v. Louisiana, 816 F.2d 220, 224 (5th Cir.
1987) (“Pre-trial petitions . . . are properly brought under 28 U.S.C. § 2241, which applies to persons
in custody regardless of whether final judgment has been rendered and regardless of the present
status of the case pending against him.”). However, Phillips, Stow, and Dickerson do not address
Smith’s situation. Unlike Smith, the petitioners in Phillips, Stow, and Dickerson were not convicted
in state court during the course of their habeas proceedings and thus these cases do not address
whether § 2254 would apply in that situation. These cases simply held that jurisdiction was
appropriate under § 2241, and that the petitioners could seek habeas relief notwithstanding that they
were not in custody pursuant to a state-court judgment.
In contrast to these cases, the Tenth Circuit in Yellowbear v. Wyoming Attorney General
addressed an appeal from the denial of a pre-conviction § 2241 petition after the petitioner had been
convicted in the interim. See 525 F.3d 921 (10th Cir. 2008). The court stated:
Mr. Yellowbear brought this action under 28 U.S.C. § 2241. Section 2241 is a
vehicle for challenging pretrial detention, or for attacking the execution of a sentence.
A § 2254 petition, on the other hand, is the proper avenue for attacking the validity
of a conviction and sentence. In its current posture, Mr. Yellowbear’s claim that the
state court lacked jurisdiction over him is an attack on his conviction and sentence.
His petition must therefore be brought under § 2254.
Id. at 924 (internal citations omitted). The Yellowbear court remanded the case to permit the district
court to provide the petitioner with an opportunity to re-characterize his § 2241 action as arising
under § 2254. Id. at 924–25. In Jackson v. Coalter, the petitioner filed a petition under § 2254,
although he was a pretrial detainee. See 337 F.3d 74 (1st Cir. 2003). The district court proceeded
to adjudicate the matter on the basis that habeas relief is available to pretrial detainees under § 2241.
The First Circuit concluded that the petitioner’s interim guilty plea, subjecting him to a state-court
judgment, made it unnecessary to address whether the district court properly proceeded under
§ 2241, and then decided the case under § 2254, applying AEDPA deference to the petitioner’s
double jeopardy claim. Id. at 79, 81. However, just as the cases cited by the majority do not directly
address the issue before us, so too the cases from the First and Tenth Circuits do not address the
issue head on.
Nevertheless, it is unnecessary to decide whether de novo review or AEDPA deference
applies to Smith’s claims because his claims fail under either standard.
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