BIGBEE v. MARION COUNTY JAIL II COMMANDER

Filing 3

ENTRY Dismissing Filing Fee and Habeas Petition and Denying Certificate of Appealability - The action is summarily dismissed because the habeas petition shows on its face that the petitioner is not entitled to the relief he seeks. The dismissal s hall be without prejudice. Judgment consistent with this Entry shall now issue. The Court denies a certificate of appealability. The clerk shall update the docket to reflect Mr. Bigbee's address at the Marion County Jail II, and the respondent as the Jail Commander of Marion County Jail II. (See Entry.) Signed by Judge Larry J. McKinney on 8/1/2017. Copy sent to Petitioner via US Mail. (GSO)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
LEON L BIGBEE,
Petitioner,
vs.
MARION COUNTY JAIL II COMMANDER,
Respondent.

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No. 1:17-cv-02506-LJM-DML

Entry Dismissing Filing Fee and Habeas Petition and Denying Certificate of
Appealability
I. Filing Fee
The petitioner shall have through August 31, 2017, in which to either pay the
Five Dollar ($5.00) filing fee or demonstrate his financial inability to pay it.
II. Habeas Petition
Petitioner Leon L. Bigbee is a pretrial detainee confined at the Marion County Jail
II. He is a defendant in a criminal prosecution in Marion Superior Court under case
number 49G01-1703-F5-008405 (“the pending case”). That case has been consolidated
with other pending charges in 49G01-1701-F5-002203. Mr. Bigbee brings this habeas
petition alleging that he was never finger printed or processed in a timely manner. He
further alleges that he is being detained without being processed properly, which he
alleges constitutes wrongful imprisonment in violation of the Eighth Amendment. He
seeks injunctive relief in the form of the dismissal of the charges and monetary
damages.

Federal courts are authorized to dismiss summarily any habeas petition that
appears legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856 (1994).
Accordingly, a habeas petition “should be denied at once if the issues it raises clearly
have been forfeited or lack merit under established law.” O’Connor v. United States, 133
F.3d 548, 551 (7th Cir. 1998). As explained in this Entry, this is an appropriate case for
such a disposition.
As noted, Mr. Bigbee is still at the pretrial stage of the state prosecution. Prejudgment habeas relief is available under 28 U.S.C. § 2241(c)(3). “Despite the existence
of jurisdiction, however, federal courts are reluctant to grant pre-trial habeas relief.”
Neville v. Cavanagh, 611 F.2d 673, 675 (7th Cir. 1979). “Relief for state pretrial
detainees through a federal petition for a writ of habeas corpus is generally limited to
speedy trial and double jeopardy claims, and only after the petitioner has exhausted
state-court remedies.” Olsson v. Curran, 328 Fed.Appx. 334, 335 (7th Cir. May 7, 2009).
“[T]he normal thing to do when federal courts are asked to enjoin pending
proceedings in state courts is not to issue such injunctions.” Younger v. Harris, 401 U.S.
37, 45 (1971). “[F]ederal courts must abstain from enjoining ongoing or otherwise
interfering in ongoing state court proceedings that are (1) judicial in nature, (2) involve
important state interests, and (3) provide an adequate opportunity to raise the federal
claims, as long as (4) no exception circumstances exist which would make abstention
inappropriate.” Stroman Reality, Inc. v. Martinez, 505 F.3d 658, 662 (7th Cir. 2007).
“Only in cases of proven harassment or prosecutions undertaken by state officials in
bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary

circumstances where irreparable injury can be shown is federal injunctive relief against
pending state prosecutions appropriate.” Perez v. Ledesma, 401 U.S. 82, 85 (1971).
Public records reveal that on March 3, 2017, probable cause was found on
several charges brought against Mr. Bigbee in the pending case. A public defender was
appointed and a pretrial conference was conducted on April 11, 2017. A jury trial was
set for April 19, 2017, and then rescheduled for June 14, 2017. Counsel’s motion to
withdraw appearance was granted on April 18, 2017, and a final pretrial conference was
conducted on June 6, 2017. Mr. Bigbee filed a motion for continuance, which was
granted. Mr. Bigbee is currently represented by retained counsel. Another pretrial
conference is now set for August 8, and jury trial is set for August 16, 2017. There is
nothing about Mr. Bigbee’s allegations that suggests the existence of extraordinary
circumstances under which the normal state process will be inadequate to vindicate his
federally secured rights in the pending case. And, of course, damages are not available
in an action for habeas relief.
Accordingly, the action is summarily dismissed because the habeas petition
shows on its face that the petitioner is not entitled to the relief he seeks. The dismissal
shall be without prejudice. Judgment consistent with this Entry shall now issue.
III. Certificate of Appealability
The petitioner is detained pursuant to a judicial rather than an executive order.
Accordingly, the Court must determine whether a certificate of appealability is
warranted. Evans v. Circuit Court of Cook County, 569 F.3d 665, 666 (7th Cir. 2009).
Pursuant to Federal Rule of Appellate Procedure 22(b), the discussion in Evans, and 28
U.S.C. § 2253(c)(1)(A), the Court finds that the petitioner has failed to show that

reasonable jurists would find it “debatable whether [this court] was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). As in Evans, the
petitioner “certainly has not made a substantial showing of a need for federal
intervention before all of his claims have been presented to the state judiciary and
pursued through the usual appellate process after a final decision.” Evans, 569 F.3d at
667 (citing cases). The Court therefore denies a certificate of appealability.
The clerk shall update the docket to reflect Mr. Bigbee’s address at the Marion
County Jail II, and the respondent as the Jail Commander of Marion County Jail II.
IT IS SO ORDERED.

8/1/2017
Date: _____________
Distribution:

________________________________
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana

LEON L BIGBEE
665377
MARION COUNTY JAIL II
Inmate Mail/Parcels
730 East Washington Street
Indianapolis, IN 46202

NOTE TO CLERK: PROCESSING THIS DOCUMENT REQUIRES ACTIONS IN ADDITION TO
DOCKETING AND DISTRIBUTION.