Lowe v. Prindle et al
MEMORANDUM OPINION AND ORDER: It is ordered 1) Lowe's motion to correct errors in his petition and to supplement his petition 10 is GRANTED, Lowe's motion requesting a hearing 10 is DENIED; 2) Lowe's motion to compel 13 is DENIED ; 3) Lowe's motion to report fraud 12 is DENIED; 4) Lowe's Motion for order 14 is GRANTED; 5) Lowe's motion to report complicity 18 is GRANTED; 6) Lowe's motion for disclosure 20 is DENIED; 7) Lowe's petition for writ 1 is DENIED; 8) Court will enter Judgment; 9) This matter is STRICKEN from the docket. Signed by Judge Karen K. Caldwell on 07/24/2014. (TED)cc: COR. Kurt Lowe via U.S. Mail Modified to opinion on 7/24/2014 (TED).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
KURT J. LOWE,
Civil Action No. 2: 14-104-KKC
EDWARD PRINDLE, JAILER,
*** *** *** ***
Petitioner Kurt J. Lowe is a pre-trial detainee confined at the Boone County Jail in
Burlington, Kentucky. Proceeding without an attorney, Lowe has filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. [R. 1] The Court has granted Lowe’s motion to
waive payment of the filing fee by prior order.
The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. § 2243;
Alexander v. Northern Bureau of Prisons, 419 F. App’x 544, 545 (6th Cir. 2011). The Court
must deny the petition “if it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief.” Rule 4 of the Rules Governing § 2254 Cases in the United
States District Courts (applicable to § 2241 petitions pursuant to Rule 1(b)). The Court evaluates
Lowe’s petition under a more lenient standard because he is not represented by an attorney.
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003).
At this stage, the Court accepts the petitioner’s factual allegations as true, and his legal claims
are liberally construed in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56
In his petition, Lowe indicates that he is being held in the Boone County Jail facing
criminal charges filed against him in Commonwealth v. Lowe, No. 13-CR-710 (Cir. Ct. Boone
Lowe contends that he is the victim of selective prosecution, the trial court
improperly denied him bail, he is being mistreated by jail officials, the trial court has denied him
his right to a speedy trial, the prosecution has failed to disclose exculpatory materials under
Brady, he was not permitted to present evidence to the grand jury, he is being punished for
representing himself in the criminal case, the Kentucky State Police are impeding a criminal
investigation, and the state court clerk is falsifying records. [R. 1]
On June 18, 2014, Lowe also filed a motion to correct certain clerical errors in his
petition, and to supplement his petition to reiterate his claims of misconduct by prosecutors,
judges, correctional officers and clerks office staff. Lowe’s motion also requested that the Court
schedule a hearing so that he could present oral argument, witnesses and documentary evidence
in support of his petition. [R. 10] Lowe reiterated his request for a hearing in his “Motion to
Compel Hearing.” [R. 13] The Court will grant Lowe’s motion to correct and supplement his
petition, and will consider the materials contained in his motion as part of the petition. The
Court will deny both of his requests for a hearing on his petition for the reasons set forth more
Lowe has also filed a “Motion to Report Fraud.” [R. 12] However, the motion itself
contains no substance, but merely refers to attached documents that were filed in a 2008 civil
proceeding involving Lowe.
These documents have no self-evident relevance to the 2013
criminal proceeding which forms the basis for Lowe’s current petition, and the Court will not
guess as to their meaning in relation to his current habeas claims. The Court will therefore deny
On July 3, 2014, Lowe filed a “Verified Complaint,” in which he requests that this Court
take action of an unspecified nature to protect Lowe’s rights. Apparently because of the relief
Lowe requested in his Verified Complaint, the Clerk of the Court docketed this document as a
“Motion for Order to protect rights of Petitioner and make reports to proper authorities.” [R. 14]
In this document, Lowe describes events occurring as early as 2006 involving alleged corruption
by local officials and his criminal prosecution in an earlier case. [R. 14, ¶1-30] With respect to
his allegations regarding his current criminal case, Lowe alleges that two judges were not
impartial, although it appears that both have since recused. The Court construes this document
as a motion to amend the petition; the Court will grant that motion, and consider the allegations
contained in the “Verified Complaint” as part of its screening of the petition.
Lowe has also filed a “Motion to Report Complicity to Fix This Case.” [R. 18] In that
document, Lowe alleges that Judge Reinhardt Ward – who is apparently now presiding over
Lowe’s criminal case – participated in a conspiracy with the defendants because she denied him
access to certain funds, failed to order the disclosure of certain documents, refused his request to
review bail, and held him in contempt of court. As with its predecessor, the Court construes this
motion as a request to amend his petition with factual allegations regarding proceedings in his
criminal case. So construed, the Court will grant this motion.
Lowe has also sent a number of letters directly to the judge presiding over this matter; all
have been forwarded to the Clerk and docketed in this matter as part of the record. [R. 6, 11, 16,
17, 19, 21, 22] Some of these letters complain of mistreatment at the jail, others reiterate
allegations made in the petition or in formal motions, still others complain that the Clerk’s Office
is not providing Lowe with confirmations of his filings.
In the future, Lowe must direct questions or requests regarding copies, the status of a
case, or the filing of a document solely to the Clerk’s Office – not to the presiding judge. The
Clerk of the Court is required by the District Court Miscellaneous Fee Schedule to charge all
parties – including those proceeding pro se and/or in forma pauperis – for copies. The Clerk
may, but is not required to, provide a copy of the docket sheet without charge as a courtesy to
indigent plaintiffs, but the Clerk may justifiably limit how often such copies are provided gratis.
Any request for substantive relief in a case must be made by formal motion pursuant to
Local Rule 7.1, which should be mailed to the Clerk’s Office. Once it is filed into the record, the
Clerk will advise the Court that a motion has been filed. It is not acceptable for any party to send
an informal letter directly to a judge for this purpose. Any document which is not properly and
formally styled as a motion shall be returned, unfiled, by the Clerk of the Court.
Third, a habeas corpus petition filed under § 2241 by a pretrial detainee in state custody
may be used to challenge his prosecution prior to judgment, cf. Phillips v. Court of Common
Pleas, Hamilton Co., Ohio, 668 F. 3d 804, 809 (6th Cir. 2012), but matters concerning the
conditions of confinement at the jail are not cognizable in this habeas proceeding. Because such
claims which must be pursued under the civil rights laws under 42 U.S.C. § 1983, the Court does
not consider them here.
Finally, Lowe filed a “Motion for Disclosure, Disqualification & Report Misconduct” in
which he asserts that the United States Marshals Service, a docketing clerk in the Court’s Clerks
Office, and Judges Amul Thapar, William Bertelsman, and David Bunning, are not impartial or
have a conflict of interest within the meaning of 28 U.S.C. §§ 144, 455. For relief, he requests
that these parties disclose conflicts of interest, and that the Clerk’s Office provide him with
“confirmations” when documents are filed into the record. [R. 20] This motion will be denied
as without merit. As a threshold matter, both § 144 and § 455 apply only to judges - not to court
staff or federal marshals - and only to the judge presiding over the matter in question. More
fundamentally, even if actual or perceived bias is found, the statutes require only recusal or
disqualification; disclosure of the disqualifying grounds is only necessary if a party seeks a
waiver of the appearance of bias pursuant to § 455(e).
Pursuant to 28 U.S.C. § 2243, the Court has conducted its initial review of Lowe’s habeas
corpus petition, including those documents indicated above that effectively amend or supplement
the petition, and which the Court has permitted to be considered as part of the basis for his
claims for relief. Viewed collectively, these documents set forth Lowe’s contention that the
criminal prosecution against him violates his constitutional rights in light of alleged misconduct
by the presiding judges, prosecuting attorneys, defense attorneys, jail staff, court staff and others.
The Sixth Circuit has explained that while “a pretrial detainee may petition for habeas
relief,  such claims are extraordinary.” Christian v. Wellington, 739 F. 3d 294, 297 (6th Cir.
2014). This is because “if the issues raised in the petition may be resolved either by trial on the
merits in the state courts or by other state procedures available to the petitioner,” a federal court
should abstain from exercising its habeas jurisdiction under § 2241 until after the petitioner
exhausts his available state court remedies by giving state courts the first opportunity to
adjudicate his challenges to the propriety of the prosecution. Atkins v. Michigan, 644 F.2d 543,
546 n. 1 (6th Cir. 1981); Gully v. Kunzman, 592 F.2d 283, 286 (6th Cir. 1979) (acknowledging
federal courts’ authority to consider a habeas corpus petition before a judgment of conviction is
entered, but noting that “considerations of federalism counsel strongly against exercising the
power except in the most extraordinary circumstances”). As a result, petitions for pretrial habeas
relief are typically denied. In re Justices of Superior Court Dept. of Mass. Trial Ct., 218 F.3d
11, 17-18 (1st Cir. 2000).
There are two generally-recognized exceptions to this rule. First, a claim that the state
prosecution violates the Double Jeopardy Clause may be considered notwithstanding the
abstention principles set forth in Younger v. Harris, 401 U.S. 37 (1971).
See Mannes v.
Gillespie, 967 F.2d 1310, 1312 (9th Cir. 1992). Second, a claim that petitioner’s right to a
speedy trial is being violated may be considered, but only if (1) the petitioner has exhausted his
state court remedies, and (2) the petitioner requests an order compelling the state to grant him a
speedy trial, rather than seeks dismissal of the state charges against him. Cf. Humphrey v.
Plummer, 840 F. Supp. 2d 1040, 1043 (S.D. Ohio 2011); Smith v. Hall, No. 3:12-CV-1022, 2013
WL 587479, at *2 n.2 (M.D. Tenn. Feb. 13, 2013).
Of all of the claims made by Lowe, only his speedy trial claim could conceivably fall
within the scope of these exceptions. However, Lowe has not yet exhausted his available state
remedies regarding this claim, and the only specific demand for relief Lowe makes in his petition
is for the Court to release him from the custody of the Boone County Jail, [R. 1, p. 16], making
consideration of even this claim impermissible. Cf. Coleman v. Ahlin, 542 F. App’x 549, 551
(9th Cir. 2013). The Court will therefore deny his petition without prejudice to afford him the
opportunity to exhaust his remedies available through the Kentucky court system prior to seeking
federal habeas relief.
Accordingly, IT IS ORDERED that:
Lowe’s motion to correct errors in his petition and to supplement his petition
[R. 10] is GRANTED; Lowe’s motion requesting a hearing to present oral argument, witnesses,
and evidence [R. 10] is DENIED.
Lowe’s “Motion to Compel Hearing” [R. 13] is DENIED.
Lowe’s “Motion to Report Fraud” [R. 12] is DENIED.
Lowe’s “Motion for Order to protect rights of Petitioner and make reports to
proper authorities” [R. 14], construed by the Court as a motion to amend the petition, is
Lowe’s “Motion to Report Complicity to Fix This Case” [R. 18], construed by the
Court as a motion to amend the petition, is GRANTED.
Lowe’s “Motion for Disclosure, Disqualification & Report Misconduct” [R. 20] is
Lowe’s petition for a writ of habeas corpus [R. 1] is DENIED.
The Court will enter a judgment contemporaneously with this order.
This matter is STRICKEN from the docket.
Dated July 24, 2014.
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