GARRISON v. HAWKINS et al

Filing 13

REPORT AND RECOMMENDATIONS - IT IS THEREFORE RECOMMENDED THAT: 1. Petitioner's pro se petition for a writ of habeas corpus be DISMISSED without prejudice to refiling after petitioner has exhausted all available state court remedies. 2. A certi ficate of appealability should not issue because, for the foregoing reasons, petitioner has not made a substantial showing of the denial of a constitutional right that is remediable at this juncture in this proceeding. See 28 U.S.C. § 2253(c) ; Fed. R. App. P. 22(b). 3. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that with respect to any application by petitioner to proceed on appeal in forma pauperis, an appeal of any Order adopting this Report and Recommendation would not be taken in good faith, and therefore DENY petitioner leave to appeal in forma pauperis. See Fed. R. App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997). Objections to R&R due by 9/12/2024. Signed by Magistrate Judge Peter B. Silvain, Jr on 8/29/2024. (srb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CARLOS Q. GARRISON,
Petitioner,
vs.
DANIEL HAWKINS, et al.,
Respondents.

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Case No. 2:24-cv-2832
District Judge James L. Graham
Magistrate Judge Peter B. Silvain, Jr.

REPORT AND RECOMMENDATION1
Petitioner, a pretrial detainee at the Franklin County Correctional Center, filed a pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in this Court.2 (Doc. 1). The
petition is brought in connection with petitioner’s pending criminal charges in Franklin County
Court of Common Pleas, Case Number 2022-CR-003647. Petitioner asserts the following seven
grounds for relief in the petition, as amended:
GROUND ONE: Judge Dan Hawkins failed to enforce the Franklin County
Common Pleas Courts rules of practice set into place to prevent unjust lengths of
pretrial detention. Unjustly denying motion to suppress.
GROUND TWO: Prosecutor Matthew J. Thompson & Prosecutor Megan M.
Farley failed to enforce the Franklin County Court rules of practice set into place
to prevent unjust lengths of pretrial detention.
GROUND THREE: Attorney Donald L. Kline failed to enforce the Franklin
County Court rules of practice set into place to prevent unjust lengths of pretrial
detention.
GROUND FOUR: Tpr. Michael D. Rucker made a false report resulting in police
misconduct in which suppression of all evidence should have been granted but was
not.
1

Attached is a NOTICE to the parties regarding objections to this Report and Recommendation.
The petition was initially filed in the United States District Court for the District of Columbia, before being
transferred to this Court on May 22, 2024. (See Doc. 7).
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GROUND FIVE: Tpr. Timothy L. Ehrenborg police misconduct.
GROUND SIX: Detective Andrew Borba police misconduct.
GROUND SEVEN: Pretextual stop, illegal search & seizure, jurisdiction, chain
of custody, standing.
(Doc. 5 at PageID 64-65, 67-69). As relief, petitioner seeks dismissal of the charges against him
and immediate release from custody. (Id. at PageID 65. See also Doc. 11).
On May 24, 2024, the undersigned issued an Order for petitioner to show cause why this
action is not subject to dismissal for lack of exhaustion and because petitioner’s requested relief—
dismissal of the charges pending against him—is not properly brought in a pretrial § 2241 petition.
(Doc. 8). In response to the Order, petitioner asserts that on May 8, 2024, he exhausted his statecourt remedies by orally petitioning the trial court for a dismissal of all pending charges. (Doc. 9
at PageID 7). Petitioner further argues the merits of his speedy trial claim, disputing whether
dismissal of the pending charges in the state-court is a proper remedy in this habeas corpus
proceeding. (See id. at PageID 8-10).
As noted in the Court’s prior Order, a pretrial detainee who has exhausted all available
state remedies as a prelude to seeking federal habeas relief may file a pretrial petition under § 2241
to the extent he seeks “to demand enforcement of the [State’s] affirmative constitutional obligation
to bring him promptly to trial.” See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S.
484, 489-90 (1973); see also Atkins v. Michigan, 644 F.2d 543, 546-47 (6th Cir. 1981). However,
it is well-settled that a federal court should not interfere in pending state court criminal proceedings
absent the threat of “irreparable injury” that is “both great and immediate.” Younger v. Harris,
401 U.S. 37, 46 (1971). Abstention from adjudicating the merits of an affirmative defense to a
state criminal charge prior to the state court’s entry of the final judgment of conviction is justified

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by considerations of comity. Atkins, 644 F.2d at 546. Therefore, intrusion into state proceedings
already underway is warranted only in extraordinary circumstances. Braden, 410 U.S. at 489
(1973); Atkins, 644 F.2d at 546. Furthermore, even if extraordinary circumstances exist to warrant
federal court intervention into on-going state criminal prosecutions, the petitioner must exhaust all
available state court remedies before seeking federal habeas relief. See, e.g., Braden, 410 U.S. at
490; Atkins, 644 F.2d at 546.
The Sixth Circuit has recognized exceptions to the Younger abstention doctrine in only
three scenarios: (1) when the petitioner seeks a speedy trial, Atkins, 644 F.2d at 546-47; (2) when
the petitioner seeks to avoid a second trial on the ground that it would violate the Double Jeopardy
Clause, Delk v. Atkinson, 665 F.2d 90, 93 (6th Cir. 1981); and (3) when the petitioner seeks to
challenge the State’s attempt to retry him rather than permit him to accept an initial plea offer
originally rejected due to ineffective assistance of counsel, Turner v. Tennessee, 858 F.2d 1201,
1205 (6th Cir. 1988), vacated on other grounds, 492 U.S. 902 (1989). See, e.g., Pruitt v. Ohio,
No. 1:10cv313, 2010 WL 2607246, at *2 (S.D. Ohio May 19, 2010) (Hogan, M.J.) (Report &
Recommendation), adopted, 2010 WL 2620804 (S.D. Ohio June 25, 2010) (Barrett, J.); Jenkins v.
Kentucky, Civ. Act. No. 14-31-HRW, 2014 WL 2758762, at *2 (E.D. Ky. June 3, 2014) (citing
and quoting Simpson v. Jones, No. 11-cv-422-JBC-CJS, 2012 WL 3912755, at *2-3 (E.D. Ky. July
16, 2012) (Report & Recommendation), adopted, 2012 WL 3912738 (E.D. Ky. Sept. 7, 2012));
Coleman v. Jones, No. 3:10cv163, 2010 WL 1643276, at *3 (E.D. Tenn. Apr. 21, 2010); Robinson
v. Michigan, No. 1:09cv231, 2009 WL 1067245, at *1 (W.D. Mich. Apr. 17, 2009). None of those
exceptions apply here.3

Petitioner’s claims do not constitute the type of “extraordinary

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As noted below, petitioner does not seek a prompt trial date to ensure enforcement of his constitutional right, but
rather he asserts the speedy trial claim in an effort to have the pending criminal charges dismissed.

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circumstances” recognized by the Sixth Circuit that would permit this Court to intervene in the
pending state criminal trial proceedings.
In any event, even assuming, arguendo, that extraordinary circumstances exist to justify
this Court’s intervention in the ongoing state criminal proceedings, it appears that it is subject to
dismissal because petitioner has not exhausted his available state court remedies before applying
for federal habeas corpus relief. From a review of the Franklin County Clerk of Court online
docket records, it does not appear that petitioner has raised a speedy trial claim at any point during
the state-court proceedings or otherwise exhausted his grounds for relief.4 Although petitioner
indicates that he orally moved for dismissal of the pending charges in the trial court, petitioner has
not presented his speedy trial claim or any other ground for habeas relief to the Ohio Court of
Appeals or Ohio Supreme Court. It therefore appears that petitioner has not exhausted his available
state court remedies prior to filing the instant petition. See, e.g., Rivers v. Kountz, No. 4:22-CV591, 2022 WL 2718833, at *2 (N.D. Ohio June 27, 2022) (“Pretrial detainees proceeding under
Section 2241 ‘must exhaust all available state court remedies before proceeding in federal court,
and this usually requires that they appeal an adverse decision all the way to the state’s court of last
resort.’”) (quoting Phillips v. Hamilton Cty. Ct. of Comm. Pleas, 668 F.3d 804, 810 n.4 (6th Cir.
2012)).
Moreover, petitioner does not seek a prompt trial date to ensure enforcement of his
constitutional right, but rather he asserts the claim in an effort to have the pending criminal charges
dismissed. (See Doc. 5 at PageID 65; Doc. 11). See Atkins, 644 F.2d at 546-47 (pretrial
consideration of an exhausted speedy trial claim was proper where the petitioner sought a prompt

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Viewed at https://fcdcfcjs.co.franklin.oh.us/CaseInformationOnline/caseSearch?Tb3XevEzairnZkRUzRlU, under
Case No. 22-CR-3647. This Court may take judicial notice of court records that are available online to members of
the public. See Lynch v. Leis, 382 F.3d 642, 648 n.5 (6th Cir. 2004).

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trial date, as opposed to dismissal of the charges, as relief); Hairston v. Franklin Cnty. Court of
Common Pleas, No. 2:17-cv-353, 2017 WL 2628236, at *2 (S.D. Ohio June 16, 2017) (“a federal
court may issue an order requiring a state to promptly bring a petitioner to trial after a petitioner
has exhausted all state remedies available to him on that issue. On the other hand, on the basis of
comity considerations, federal courts abstain from exercising habeas jurisdiction where a petitioner
seeks to have charges dismissed on speedy trial grounds.”) (Report & Recommendation), adopted,
2017 WL 2972151 (S.D. Ohio July 12, 2017).
Accordingly this action should be dismissed without prejudice for lack of exhaustion and
because petitioner’s requested relief is not properly brought in a pretrial § 2241 petition, see Atkins,
644 F.2d at 546-48.
IT IS THEREFORE RECOMMENDED THAT:
1.

Petitioner’s pro se petition for a writ of habeas corpus be
DISMISSED without prejudice to refiling after petitioner has
exhausted all available state court remedies.

2.

A certificate of appealability should not issue because, for the
foregoing reasons, petitioner has not made a substantial showing of
the denial of a constitutional right that is remediable at this juncture
in this proceeding. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

3.

The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that with
respect to any application by petitioner to proceed on appeal in
forma pauperis, an appeal of any Order adopting this Report and
Recommendation would not be taken in “good faith,” and therefore
DENY petitioner leave to appeal in forma pauperis. See Fed. R.
App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir.
1997).

s/Peter B. Silvain, Jr.

August 29, 2024

Peter B. Silvain, Jr.
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the proposed
findings and recommendations.

This period may be extended further by the Court on timely

motion for an extension. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. If the Report and
Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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