Heard v. Hickey
Filing
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MEMORANDUM AND OPINION: (1) Heard's 1 2241 Petition DENIED; (2) this action DISMISSED WITHOUT PREJUDICE to his right to refile same claims in pending criminal matter or, if appropriate, after he has exhausted other available remedies; (3) JGM will be entered; (4) Clerk directed to provide Andrew Stephens w/ copy of this Memorandum Opinion and Order and with copy of Heard's 2241 Petition. Signed by Judge Jennifer B Coffman on 3/30/2012.(STB)cc: Plt, A. Stephens
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
MARQUIS DERON HEARD,
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Petitioner,
V.
DEBORAH A. HICKEY, Warden,
Respondent.
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Civil Action No. 5:12-CV-055-JBC
MEMORANDUM OPINION
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ORDER
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Marquis Deron Heard, currently incarcerated in the Federal Medical Center in
Lexington, Kentucky (“FMC-Lexington”), has filed a pro se habeas corpus petition,
pursuant to 28 U.S.C. § 2241, concerning his pre-trial detention, and has paid the $5.00
filing fee.1 Because Heard is not entitled to relief under § 2241, the Court will deny his
petition and dismiss this proceeding.
BACKGROUND
Heard is a pre-trial detainee. On June 2, 2011, he was indicted by a federal
grand jury in the Eastern District of Kentucky in a three-count indictment charging him
with (1) conspiring with others to knowingly and intentionally distribute cocaine, a
Schedule II controlled substance, in violation of 21 U.S.C. § 846; (2) knowingly and
intentionally distributing a mixture or substance containing cocaine, in violation of 21
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As the $5.00 filing fee has been paid, the Court screens the petition to determine
whether Heard is entitled to relief under § 2241. See Rule 4, Rules Governing 28 U.S.C.
§ 2254 Cases; (applicable to § 2241 petitions under Rule 1(b)); see also 28 U.S.C. § 2243.
A district court may summarily dismiss a petition if it appears from its face that the
petitioner is not entitled to relief. See 28 U.S.C. § 2243; Blevins v. Lamanna, 23 F. App’x
216, 218 (6th Cir. 2001).
U.S.C. § 841(a)(1); and (3) conspiring with others to knowingly conduct financial
transactions affecting interstate and foreign commerce (that is, the purchase and sale
of cocaine), which involved United States currency representing the proceeds of the
unlawful distribution of cocaine, with the intent to promote the carrying on of that
unlawful activity, and that Heard knew that the currency involved in these financial
transactions represented the proceeds of an unlawful activity, all in violation of 18
U.S.C. § 1956(h). The indictment also sought the forfeiture of certain personal property
and real property, pursuant to 21 U.S.C. § 853 and 18 U.S.C. § 982. See United States
of America v. Marquis Deron Heard, 5:11-CR-73-JBC.
A brief chronology of Heard’s criminal case and its status is summarized below:
Heard pled not guilty to the charged offenses, was detained pre-trial, and this
matter was scheduled for trial on August 8, 2011. However, the trial date was
continued, and Heard has not yet been tried on these charges for the following reasons:
(1) the indictment has twice been superseded, resulting in additional offenses being
charged against Heard and another defendant, Raul Soltero-Baeza, being added to this
case; (2) Heard’s retained counsel, William Butler, on his own motion, was permitted to
withdraw as Heard’s counsel, and counsel was appointed for Heard under the Criminal
Justice Act, and (3) on Heard’s motion, by counsel, for a competency evaluation under
pursuant to 18 U.S.C. § 4241, on January 6, 2012, he was committed to the custody of
the Attorney General for the purpose of undergoing a psychological and psychiatric
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examination, resulting in the rescheduled trial date of January 10, 2012, necessarily
being continued pending a determination of his competency to stand trial.2
HEARD’S § 2241 PETITION
Summarizing his habeas petition, Heard contends that (1) the indictment is
defective because there was no concurrence of a grand jury, (2) he was charged with
conspiracy in the first three counts of the indictment, but since he is the only defendant,
it is impossible to have a one-man conspiracy, (3) Count 3 charges a 250-gram powder
sale that was incorporated with other charges to result in a federal indictment, and (4)
the police forcibly entered his residence, kicking in his door, and searched his residence
on a defective indictment. Heard seeks immediate release from custody, or in the
alternative, a speedy trial.
ANALYSIS
A pretrial detainee may pursue habeas relief under 28 U.S.C. § 2241. See Girts
v. Yanai, 600 F.3d 576, 587 (6th Cir. 2010); Atkins v. Michigan, 644 F.2d 543, 546 n. 1
(6th Cir.1981). Although Section 2241 establishes jurisdiction in the federal courts to
consider pretrial habeas corpus petitions, the courts should abstain from the exercise of
that jurisdiction if the issues raised in the petition may be resolved either by trial on the
merits or by other procedures available to the petitioner. See, e.g., Fay v. Noia, 372
U.S. 391, 417-20 (1963); Brown v. Estelle, 530 F.2d 1280 (5th Cir. 1976); United States
ex rel. Scranton v. New York, 532 F.2d 292 (2d Cir. 1976).
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On the Warden’s request, the Court granted the Bureau of Prisons an extension
of time until March 8, 2012, to complete its psychological and psychiatric evaluation of
Heard and an extension of time to April 5, 2012, to provide the Court with the competency
evaluation report.
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All of Heard’s allegations seeking § 2241 habeas relief are directed toward the
federal criminal proceeding that is pending in this Court. In Chandler v. Pratt, 96 F.
Appx. 661, 2004 WL 1080214 (10th Cir. May 14, 2004)(unpublished), the Tenth Circuit
Court of Appeals upheld the dismissal without prejudice of similar claims brought by a
federal pretrial detainee in a § 2241 habeas petition. The petitioner in that case
contended that he was being denied his right to a speedy trial and that the superseding
indictment filed against him in a pending federal criminal proceeding was defective. As
that court stated,
[t]o be eligible for habeas corpus relief under § 2241, a federal pretrial
detainee usually must exhaust other available remedies.... Here, all the
claims petitioner attempted to raise in his § 2241 petition should have
been, and apparently were being, pursued in the criminal action. To allow
petitioner to bring the same claims before another judge in a collateral
proceeding would not only waste judicial resources, but would encourage
judge shopping. The district court properly dismissed petitioner's claims
without prejudice for failure to exhaust, and there was no arguable basis
in law or fact for appealing that decision.
Id. at 662 (citations omitted). Heard has not shown that he has exhausted remedies
available to him under federal law, see, e.g., 18 U.S.C. § 3162(a)(2)(challenge under
speedy trial guarantees), with respect to each of his habeas claims. Heard has
court-appointed counsel in his criminal proceeding, and he has filed numerous pro se
motions in that proceeding as well. Heard’s challenges to the federal criminal
proceeding can and should be brought in the criminal matter or in a timely appeal to the
Sixth Circuit Court of Appeals. Thus, Heard’s § 2241 habeas petition is premature and
will be dismissed without prejudice due to his failure to exhaust available remedies.
See United States v. Addonizio, 442 U.S. 178, 184 n. 10 (1979). Heard is represented
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by counsel who may file, in the pending criminal matter, the same claims Heard has
raised here, should his attorney deem them appropriate.
Accordingly, the Court being advised, IT IS ORDERED as follows:
(1)
Marquis Deron Heard’s 28 U.S.C. § 2241 Petition for Writ of Habeas
Corpus [R. 1] is DENIED.
(2)
This action is DISMISSED WITHOUT PREJUDICE to his right to refile the
same claims in his pending criminal matter or, if appropriate, after he has exhausted
other available remedies.
(3)
Judgment will be entered contemporaneously with this Memorandum
Opinion and Order in favor of the Respondent, Deborah A. Hickey, Warden.
(4)
For informational purposes, the Clerk of the Court is directed to provide
Andrew M. Stephens, Heard’s court-appointed counsel in the criminal action, with a
copy of this Memorandum Opinion and Order and with a copy of Heard’s § 2241
habeas petition.
Signed on March 30, 2012
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