Banks v. Bedard et al
Filing
4
Memorandum Opinion and Order granting petitioner's Motion to proceed in forma pauperis (Related Doc # 2 ), the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 is denied and this action is dismissed pursuant to 28 U.S.C. § 2243. Further, the Court certifies, pursuant to 28 U.S.C. §1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Dan A. Polster(C,KA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
FREDERICK BANKS,
Petitioner,
v.
WARDEN BEDARD, et al.
Respondent.
)
)
)
)
)
)
)
)
)
CASE NO. 4:15 CV 1724
JUDGE DAN AARON POLSTER
MEMORANDUM OF OPINION
AND ORDER
Pro se Petitioner Frederick Banks filed the above-captioned Petition for a Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241. Banks is incarcerated in the Northeast Ohio
Correctional Center, awaiting trial in the United States District Court for the Western District of
Pennsylvania. Banks challenges the pending criminal proceedings, claiming: (1) the “harassing
communications” charge violates his First Amendment right to free speech; (2) the search of his
residence violated his Fourth Amendment rights; (3) the charges were brought against him in
retaliation for filing numerous frivolous complaints against the victim, an FBI agent; (4) the
prosecutor threatened him with a superceding indictment if he did not plead guilty to the
charges; and (5) his attorney is not representing him effectively. He seeks immediate release
from custody and dismissal of the criminal charges.
Section 2241 “applies to persons in custody regardless of whether final judgment has
been rendered and regardless of the present status of the case pending against [the Petitioner.]”
Atkins v. Michigan, 644 F.2d 543, 546 n. 1 (6th Cir. 1981). Although § 2241 establishes
jurisdiction in the federal courts to consider pretrial Habeas Corpus Petitions, the Court should
abstain from the exercise of that jurisdiction if the issues raised in the petition could be resolved
either by trial on the merits in the criminal case, by other procedures available to the Petitioner
in the criminal case, or on appeal. Clements v. Gonzales, No. 407 CV 1596, 2007 WL 1747140,
at *2 (N.D. Ohio June 15, 2007). This abstention from exercising habeas corpus jurisdiction has
its foundation in the doctrine of comity, where a state Defendant challenges pretrial issues in a
federal habeas petition. Id.
Here, comity is not an issue; however, similar principles require this Court to abstain
from addressing Petitioner’s concerns. His criminal case is pending in the District Court for the
Western District of Pennsylvania. This District Court cannot issue Orders essentially
dismissing a case pending in another District Court. When a federal pre-trial detainee’s habeas
claims would be dispositive of pending federal criminal charges, those claims must be
exhausted at trial and on direct appeal before habeas corpus relief may be available. See
Sandles v. Hemingway, 22 Fed. Appx. 557 (6th Cir. 2001) (citing Moore v. United States, 875
F.Supp. 620, 624 (D. Neb. 1994); Flowers v. Edwards, 780 F.2d 1020, 1984 WL 13977, *1 (6th
Cir. Nov. 18, 1985). Banks has not alleged that he exhausted his claims by raising them at trial,
or on direct appeal.
Conclusion
Accordingly, Petitioner’s Motion to Proceed In Forma Pauperis (Doc. No. 2) is
GRANTED, the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 is denied
-2-
and this action is dismissed pursuant to 28 U.S.C. § 2243. Further, the Court certifies, pursuant
to 28 U.S.C. §1915(a)(3), that an appeal from this decision could not be taken in good faith.
IT IS SO ORDERED.
/s/Dan Aaron Polster 11/16/15
DAN AARON POLSTER
UNITED STATES DISTRICT JUDGE
-3-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?