Wagner v. Glass

Filing 9

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that petitioners motion for extension of time to file court-approved forms [Doc. #5] is GRANTED. IT IS FURTHER ORDERED that petitioners application for writ of habeas corpus pursuant to 28 U.S.C.  7; 2241 [Doc. #1 and #8] is DENIED and DISMISSEDWITHOUT PREJUDICE. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. A separate Order of Dismissal shall accompany this Memorandum and Order. 5 1 8 Signed by District Judge Henry E. Autrey on 7/24/13. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BENJAMIN W. WAGNER,
Petitioner,
v.
DALE GLASS,
Respondent.

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No. 4:13CV812 DDN

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on petitioner’s application for writ of habeas
corpus pursuant to 28 U.S.C. § 2241.
Petitioner, a pretrial detainee at St. Louis City Justice Center, alleges that: (1)
he has been subjected to excessive bail;1 (2) his due process rights have been violated
1

The Eighth Amendment provides, “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const.
amend. VIII, § 1. “The touchstone of the constitutional inquiry under the Excessive
Fines Clause is the principle of proportionality: The amount of the [fine] must bear
some relationship to the gravity of the offense that it is designed to punish.” United
States v. Bajakajian, 524 U.S. 321, 334, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998). For
excessive fine claims, a petitioner must show: (1) gross disproportionality; and (2)
the disproportionality is of such a level that the punishment is more criminal than the
crime. United States v. Dodge Caravan, 387 F.3d 758, 763 (8th Cir.2004). Petitioner
has been charged with two counts of sexual assault in the third degree; two counts
of statutory sodomy in the first degree/deviate sexual intercourse with a person under
the age of 14; two counts of forcible sodomy/deviate sexual intercourse by forcible
compulsion; two counts of statutory rape in the first degree/sexual intercourse with
a person less than 14 years old; four counts of forcible rape/sexual intercourse by

in his criminal proceedings because the judge has refused to take up his pro se
motions for hearing;2 (3) his speedy trial rights under the Sixth Amendment have
been violated; and (4) the prosecution has failed to produce discovery in a timely
manner. Petitioner also asserts that his right to access the Courts has been breached
because the law library at the Justice Center is not “up to date” and he has had
limited access to the legal materials in the library.3
Petitioner states that he has pursued his allegations by filing pro se motions in
his criminal proceedings complaining of the aforementioned. Petitioner asserts that
forcible compulsion; child molestation in the first degree; and two counts of statutory
rape in the first degree with a person less than 14 years old who suffered serious
physical injury/displayed deadly weapon or a dangers instrument. Petitioner’s bond
has been set at $100,000 cash only. The Court cannot say that this amount is
disproportionate to the crimes for which he has been charged, and petitioner has not
produced any caselaw supporting his opinion to the contrary.
2

Petitioner is currently represented by appointed counsel.

3

An access to courts claim under the First Amendment is not available to
petitioner under 28 U.S.C. § 2241, but instead should be brought to this Court’s
attention under a civil rights case brought pursuant to 42 U.S.C. § 1983.
Nonetheless, the Court notes that petitioner has not stated enough facts to allege an
access to courts claim. "To state a claim [for denial of meaningful access to the
courts], inmates must assert that they suffered an actual injury to pending or
contemplated legal claims." Myers v. Hundley, 101 F.3d 542, 544 (8th Cir. 1996).
Petitioner has not stated any such injury, thus, he has not stated a violation of the
First Amendment. Additionally, the Court notes that according to Missouri
Case.Net, petitioner was granted leave, by court order of the Honorable Philip
Heagney, on August 7, 2012, to access the law library at the St. Louis City Justice
Center.
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he also filed a writ of habeas corpus in the Circuit Court for the City of St. Louis in
February of 2013 but that he has not heard any response regarding his application for
writ.4
After reviewing petitioner’s motion and the accompanying exhibits, the
petition will be summarily denied and dismissed, without prejudice, based on the
foregoing reasons.
Under 28 U.S.C. § 2241(c)(3), the federal courts have jurisdiction over pretrial
habeas petitions. Neville v. Cavanagh, 611 F.2d 673, 675 (7th Cir.1979). “Despite
the existence of jurisdiction, however, federal courts are reluctant to grant pre-trial
habeas relief.” Id. Only when “special circumstances” exist will a federal court find
that a pretrial detainee has exhausted state remedies. Id. “In most cases courts will
not consider claims that can be raised at trial and in subsequent state proceeding.”
Blanck v. Waukesha County, 48 F. Supp. 2d 859, 860 (D. Wis. 1999).
Courts have found that “special circumstances” existed where double jeopardy
was at issue or where a speedy trial claim was raised. Braden v. 30th Judicial Circuit
Court, 410 U.S. 484, 488 (1973) (speedy trial); Blanck, 48 F. Supp. 2d at 860 (double

4

The Court notes that review of Missouri Case.Net shows that the writ of
habeas corpus was filed in petitioner’s criminal action. See State v. Wagner, Case
No. 1222-CR03703.
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jeopardy). However, a petition must contain enough facts to state a claim as a matter
of law and must not be merely conclusory. Frey v. City of Herculaneum, 44 F.3d
667, 671 (8th Cir. 1995).
The grounds raised by petitioner do not constitute the “special circumstances”
required for a finding that he has exhausted his available state remedies.5 Petitioner’s
allegations are conclusory and do not contain any facts, which if proved, would
demonstrate that he has been deprived of the right to a speedy trial. Petitioner has
failed to include enough facts to allow the Court to evaluate his conclusory “speedy
trial” allegations, and most importantly, the claims raised by petitioner can be
adequately raised with his appointed counsel,6 at his criminal trial and in his

5

In the absence of special circumstances, a state prisoner must exhaust
currently available and adequate state remedies before invoking federal habeas
corpus jurisdiction. Braden, 410 U.S. at 484. Missouri law provides at least three
distinct avenues for a pre-trial detainee to challenge unconstitutional conduct: filing
a declaratory action, filing a state petition for habeas corpus, or filing a petition for
writ of mandamus. See Wayne v. Missouri Bd. of Prob. and Parole, 83 F.3d 994,
996-97 (8th Cir. 1996). Petitioner did not fully exhaust his state remedies before
bringing this action.
6

Furthermore, when a defendant or his counsel is responsible for the delays in
trial, the defendant, by law, is not denied his right to speedy trial. State v. Adams,
691 S.W.2d 432 (Mo.Ct.App.1985); State v. Cannon, 692 S.W.2d 357
(Mo.Ct.App.1985); State v. Daly, 731 S.W.2d 315 (Mo.Ct.App.1987); State v. Clark,
723 S.W.2d 17 (Mo.Ct.App.1986). The Court has reviewed petitioner’s case on
Missouri Case.Net and found, as petitioner must know, that petitioner’s counsel has
sought additional time from the Court to seek discovery in petitioner’s case. Thus,
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subsequent state proceedings. As a result, the Court will deny and dismiss the
petition at this time, without prejudice.
Accordingly,
IT IS HEREBY ORDERED that petitioner’s motion for extension of time to
file court-approved forms [Doc. #5] is GRANTED.
IT IS FURTHER ORDERED that petitioner’s application for writ of habeas
corpus pursuant to 28 U.S.C. § 2241 [Doc. #1 and #8] is DENIED and DISMISSED
WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that the Court will not issue a certificate of
appealability.
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 24th day of July, 2013.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

it cannot be said that his speedy trial right has been breached. To the extent that
petitioner disagrees with his counsel’s trial strategy, he must take the matter up with
her. This Court cannot intervene in their difference of opinion, if one actually exists.
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