McMichael v. Sheriff Bunchich et al

Filing 3

OPINION AND ORDER DENYING WITHOUT PREJUDICE 1 PETITION for Writ of Habeas Corpus filed by Petitioner Charles A McMichael. Clerk DIRECTED to close this case. Signed by Judge Rudy Lozano on 6/5/2017. (Copy mailed to pro se party).(cer)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
CHARLES ANTHONY
MCMICHAEL,
Petitioner,
vs.
SHERIFF,

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CAUSE NO. 2:17-CV-204

Respondent.
OPINION AND ORDER
This matter is before the Court on the Petition under 28
U.S.C. Paragraph 2254 and 2241 for Writ of Habeas Corpus filed by
Charles Anthony McMichael, a pro se prisoner. For the reasons set
forth below, the court DENIES the habeas corpus petition WITHOUT
PREJUDICE. The clerk is DIRECTED to close this case.

DISCUSSION
McMichael is being held in the Lake County Jail as a pretrial detainee. ECF 1 at 1. He is asking to be released and the
charges against him dismissed. “Ordinarily the attempt of a state
prisoner to obtain federal habeas corpus relief in advance of his
state criminal trial [is] completely hopeless.” United States ex
rel. Stevens v. Circuit Court of Milwaukee County, 675 F.2d 946,
947 (7th Cir. 1982). This is one of those ordinary cases. Though

the circuit in Stevens provided for a narrow exception to entertain
some double jeopardy claims, this case does not present a double
jeopardy claim. Here, McMichael argues he was not indicted by a
grand jury, in violation of the Fifth Amendment. He also alleges
that he has been denied access to evidence. These are questions to
be resolved in the first instance by the State trial court or the
State Appellate Courts – not this Court. Thus, to the extent that
McMichael believes that he has a viable defense to the charges
against him, he needs to first present those claims to the State
courts – at trial, on appeal, and ultimately to the Indiana Supreme
Court. See Lewis v. Sternes, 390 F.3d 1019, 1025-1026 (7th Cir.
2004).

Therefore,

this

petition

will

be

dismissed

without

prejudice. Then, after he has properly presented his claims to the
Indiana Supreme Court, he may return to this Court and file another
habeas corpus petition challenging the conviction, if necessary.

CONCLUSION
For the reasons set forth above, the Court DENIES the habeas
corpus petition WITHOUT PREJUDICE. The clerk is DIRECTED to close
this case.

DATED: June 5, 2017

/s/RUDY LOZANO, Judge
United States District Court

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