Cherry v. City of Detroit

Filing 3

OPINION and ORDER Denying the Petition for Writ of Habeas Corpus 1 , a Certificate of Appealability, and Leave to Appeal In Forma Pauperis. Signed by District Judge Bernard A. Friedman. (JCur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DJUAN CHERRY, 376674,
Plaintiff,
vs.

Civil Action No. 18-CV-11139
HON. BERNARD A. FRIEDMAN

CITY OF DETROIT,
Defendant.
___________________/
OPINION AND ORDER DENYING THE PETITION FOR
WRIT OF HABEAS CORPUS, A CERTIFICATE OF
APPEALABILITY, AND LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner, confined at the Macomb County Jail in Clinton Township, Michigan,
seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241(c)(3).1 In his pro se application, he
challenges his pending prosecution in the 36th District Court for the City of Detroit for malicious
destruction of a building. For the reasons stated below, the instant petition must be dismissed
because petitioner has yet to be convicted of any criminal charges.
In the absence of “special circumstances,” federal habeas corpus relief is not
available to review the merits of an affirmative defense to a state criminal charge prior to a
judgment of conviction by a state court. Braden v. 30th Judicial Cir. Ct. of Ky., 410 U.S. 484, 489
(1973). Although the Court has jurisdiction to hear pre-trial habeas corpus petitions, it should
normally abstain from exercising this jurisdiction if the issues may be resolved either by a state
court trial or procedures. Atkins v. People of the State of Mich., 644 F. 2d 543, 545–46 (6th Cir.
1981). Where a petitioner’s claims, if successful, would dispose of pending state criminal charges,
the claims may be exhausted only by presenting the issues at the state court trial, including claims

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Because petitioner brought this petition before being criminally convicted, the Court construes his petition as brought
under the traditional habeas statute, § 2241(c)(3), not under 28 U.S.C. § 2254. See Klein v. Leis, 548 F. 3d 425, 430,
n.4 (6th Cir. 2008).

that provide an affirmative defense to the charges and claims that would “abort a state criminal
proceeding, dismiss an indictment, or prevent a prosecution.” Moore v. United States, 875 F. Supp.
620, 622 (D. Neb. 1994). The practical effect of this exhaustion requirement is that habeas review
of dispositive claims is not available prior to a state trial. Id.
There are two exceptions to this general rule against prejudgment habeas relief: the
double jeopardy exception, Klein v. Leis, 548 F. 3d 425, 430, n.2 (6th Cir. 2008), and the speedy
trial exception, Atkins, 644 F. 2d at 547. Petitioner, however, does not allege that the pending state
court charges violate his double jeopardy or speedy trial rights. Therefore, the Court will deny the
petition without requiring respondent to answer, because it appears from the application that
petitioner is not entitled to habeas relief. Blanck v. Waukesha County, 48 F. Supp. 2d 859, 862
(E.D. Wis. 1999) (citing to 28 U.S.C. § 2243).
Accordingly,

IT IS ORDERED that the petition for a writ of habeas corpus is dismissed without
prejudice.

IT IS FURTHER ORDERED that a certificate of appealability is denied because
petitioner has failed to make a substantial showing of the denial of a federal constitutional right,
28 U.S.C. § 2253(c)(2), and leave to appeal in forma pauperis is denied because the appeal would
be frivolous, 28 U.S.C. § 1915(a)(3).

Dated: April 18, 2018
Detroit, Michigan

s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and
any unrepresented parties via the Court's ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on April 18, 2018.
s/Johnetta M. Curry-Williams
Case Manager

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