BREWINGTON v. KREINHOP

Filing 9

ENTRY Discussing Amended Petition for Writ of Habeas Corpus - Because the petitioner is not entitled to the relief he seeks at this time and in this forum, the action is dismissed. The court denies a certificate of appealability. Signed by Judge Tanya Walton Pratt on 10/14/2011.(TRG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
DANIEL P. BREWINGTON,
Petitioner,
vs.
SHERIFF MICHAEL KREINHOP,
Respondent.

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1:11-CV-1086-TWP-MJD

Entry Discussing Amended Petition for Writ of Habeas Corpus
This cause is before the court on the amended petition for a writ of habeas
corpus of Daniel P. Brewington. The action is before the court for preliminary review
pursuant to Rule 4 of the Rules Governing Section 2254 Proceedings in the United
States District Court.1
I. The Amended Petition for Writ of Habeas Corpus
Brewington is confined in the Dearborn County Law Enforcement Center awaiting
the trial or other disposition of charges pending in Dearborn County Superior Court II.
He seeks habeas corpus relief freeing himself from the burden of facing these charges.
The supplement filed on September 16, 2011, shows that he is represented by counsel.
His contentions are that he is being held in violation of his right to: free speech, effective
assistance of counsel, due process during the grand jury, access to his Ohio attorney,
access a reasonable bond and access to proper medication. A challenge to the

1 The petitioner is in state custody, but not pursuant to the judgment of a state court. However, Rule 1(b)
of the Rules Governing Section 2254 Cases in the United States District Courts provides that those Rules
may be applied in applications for habeas corpus in cases not brought by a person challenging the
judgment of a state court at the discretion of the district court. This is an appropriate case for such
application, as was Matta Ballesteros v. Henman, 896 F.2d 255, 259 (7th Cir.), cert. denied, 498 U.S. 878
(1990), and the reference to those Rules is now made explicit.

conditions of his confinement, of course, is not a proper ground on which to seek federal
habeas corpus relief. As to those habeas claims which could impact on the validity of
his detention, they center principally on his contention that he has been denied the
effective assistance of counsel. What is important for the present purpose is that each
of these claims are well within the mainstream of issues which can be presented to the
Indiana state courts in a direct appeal or a collateral challenge.
A habeas petitioner such as Mr. Brewington must give the state courts a
meaningful opportunity to consider the substance of the claims later presented in
federal court. Stated otherwise, "[a] state prisoner . . . may obtain federal habeas review
of his claim only if he has exhausted his state remedies and avoided procedurally
defaulting his claim." Thomas v. McCaughtry, 201 F.3d 995, 999 (7th Cir. 2000). It has
been noted by the Supreme Court that:
Before seeking a federal writ of habeas corpus, a state prisoner must
exhaust available state remedies, 28 U. S. C. §2254(b)(1), thereby giving
the State the “‘opportunity to pass upon and correct' alleged violations of
its prisoners' federal rights.” Duncan v. Henry, 513 U. S. 364, 365 (1995)
(per curiam) (quoting Picard v. Connor, 404 U. S. 270, 275 (1971) (citation
omitted)). To provide the State with the necessary “opportunity,” the
prisoner must “fairly present” his claim in each appropriate state court
(including a state supreme court with powers of discretionary review),
thereby alerting that court to the federal nature of the claim. Duncan,
supra, at 365-366; O'Sullivan v. Boerckel, 526 U. S. 838, 845 (1999).
Baldwin v. Reese, 541 U.S. 27, 29 (2004).
A writ of habeas corpus may be granted when it is established that the applicant
“is in custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2241(c)(3). Pre-judgment habeas relief is available under 28 U.S.C. §
2241(c)(3). Walker v. O'Brien, 216 F.3d 626, 633 (7th Cir. 2000) (Section 2254 is the
vehicle for prisoners in custody pursuant to the judgment of a state court, but not those

in state custody for some other reason, such as preconviction custody); United States v.
Castor, 937 F.2d 293, 296-97 (7th Cir. 1991); Hirsch v. Smitley, 66 F.Supp.2d 985
(W.D.Wisc. 1999). "Although federal district courts have jurisdiction over pretrial habeas
petitions, they grant such relief only sparingly." Blanck v. Waukesha County, 48
F.Supp.2d 859, 860 (E.D.Wis. 1999) (citing Neville v. Cavanagh, 611 F.2d 673, 675 (7th
Cir. 1979)).
The court’s jurisdiction over Mr. Brewington’s amended petition does not, of
course, compel that the relief he seeks actually be granted. "While not explicitly required
by § 2241(c)(3), the interests of comity have caused courts to apply the doctrine of
exhaustion of state remedies to pretrial habeas petitions." Blanck, 48 F.Supp.2d at 860.
"The exhaustion doctrine requires a petitioner to use all available state procedures to
pursue his claim before seeking federal habeas corpus relief." Id. "In most cases courts
will not consider claims that can be raised at trial and in subsequent state proceedings."
Id. "A petitioner will be held to have exhausted his remedies before trial only in 'special
circumstances.'" Id. (quoting United States v. Elrod, 589 F.2d 327, 329 (7th Cir. 1979)
(quoting Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 489 (1973)).
Mr. Brewington’s filings in this action do show the existence of special
circumstances warranting the relief he seeks. Mr. Brewington is a pretrial detainee.
Whether his claims prove meritorious or not, they are not extraordinary in the least. He
is represented by counsel, aware of the proceedings he faces, and fully able to
vindicate his federal rights implicated in the prosecution against him.

It is the

presumption of this court that his federal rights will be protected and any infringement
on those rights vindicated through a state court process. If these presumptions are not

validated by whatever lies ahead for him, he will have the opportunity to resort to a
federal forum, pursuant to 28 U.S.C. § 2254(a). To rule otherwise (with respect to the
timing of Brewington’s challenge in a federal forum) would turn the writ of habeas
corpus "into a pretrial-motion forum for . . . prisoners" and cause "the derailment of . . .
pending state proceeding[s] by attempt(ing) to litigate (affirmative) constitutional
defenses prematurely in federal court." Wingo v. Ciccone, 507 F.2d 354, 357 (8th Cir.
1974) (quoting Braden, 410 U.S. at 493). Although he is dissatisfied with the course of
proceedings thus far, and although that dissatisfaction extends to his representation, he
may present such a claim in challenges to his conviction (through an appeal or
thereafter in an action for post-conviction relief ) if the outcome of the action is not to his
dissatisfaction. Neither a “clear case” of relief nor the simple existence of fractious
proceedings warrant federal intervention in ongoing state criminal prosecutions.
"The purpose of exhaustion is not to create a procedural hurdle on the path to
federal habeas court, but to channel claims into an appropriate forum, where
meritorious claims may be vindicated and unfounded litigation obviated before resort to
federal court." Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992). The only manner in
which this purpose can be recognized is to dismiss Mr. Brewington’s amended petition
in this court and permit him to proceed, if he elects to do so, in the Indiana state courts.
Because the petitioner is not entitled to the relief he seeks at this time and in this
forum, the action is dismissed. The dismissal shall be without prejudice. Judgment
consistent with this Entry shall now issue.

II.

Certificate of Appealability
Evans v. Circuit Court of Cook County, Ill., 569 F.3d 665 (7th Cir. 2009), dictates

whether a certificate of appealability is warranted in these circumstances. Pursuant to
Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing ' 2254
Proceedings, and 28 U.S.C. ' 2253(c), the court finds that Brewington has failed to
show that reasonable jurists would find it Adebatable whether [this court] was correct in
its procedural ruling.@ Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court therefore
denies a certificate of appealability.

IT IS SO ORDERED.

10/14/2011
Date: _________________________
________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

Distribution:
Robert Gregory Kelly
[e-mail]