PERRY v. PHIPPS et al

Filing 16

OPINION AND ORDER terminating 2 Motion for Leave to Proceed in forma pauperis ; adopting Report and Recommendations re 10 Report and Recommendations.; denying 13 Motion. Signed by Judge James L. Graham on 11/26/24. (ds)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Rodney A. Perry,
Petitioner,

Case No. 2:24-cv-2835
Judge James L. Graham
Magistrate Judge Elizabeth P. Deavers

v.
Karen Phipps, et al.,
Respondents.

Opinion and Order
This matter is before the Court on the Magistrate Judge’s Report and Recommendation,
which recommended that Petitioner’s habeas corpus petition brought under 28 U.S.C. § 2241 be
dismissed without prejudice. Petitioner, a pretrial detainee in state custody, has filed objections to
the Report and Recommendation. Upon de novo review, the Court overrules the objections.
A federal court should abstain from interfering with a 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). Intrusion into state proceedings already underway is warranted only
in extraordinary circumstances. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 489
(1973). One circumstance in which a federal court may exercise authority is where a pretrial
detainee, who has exhausted state remedies before seeking federal habeas relief, files a petition under
§ 2241 “to demand enforcement of the [State’s] affirmative constitutional obligation to bring him
promptly to trial.” Braden, 410 U.S. at 489-90. Two other exceptions are recognized where a
petitioner seeks to avoid a second trial on double jeopardy grounds and where a petitioner faces
prejudice from prior constitutional violations on retrial. Folley v. Banks, No. 20-3554, 2020 WL
9813535, at *2 (6th Cir. Aug. 31, 2020).
The Magistrate Judge correctly noted that, of the three grounds for relief presented in the
petition, two (labeled Grounds One and Three) do not fit within the exceptions to abstention and
thus are not cognizable under § 2241. Ground Two is directed at an alleged violation of petitioner’s
right to a speedy trial under the Sixth Amendment to the U.S. Constitution. Nonetheless, as the
Magistrate Judge explained, the remedy which a federal court can grant is to order the state court to
promptly provide a trial. Williams v. Sheriff, Greene Cty. Adult Det. Ctr., No. 2:22-CV-4205, 2022 WL
1

17669945, at *3 (S.D. Ohio Dec. 14, 2022). Petitioner here seeks the dismissal of the criminal
charges and immediate release from custody – a remedy which the Court cannot grant under § 2241.
Id. (citing cases). Moreover, as the Magistrate Judge further explained, petitioner has not exhausted
his state court remedies by filing in state court a motion to dismiss the indictment because of a
speedy trial violation. Crawmer v. United States, No. 3:22-CV-050, 2022 WL 523414, at *2 (S.D. Ohio
Feb. 22, 2022).
In his objections, petitioner states that he “would like to object [to] trying to exhaust all
available state court remedies before seeking federal habeas relief.”

Doc. 11, p. 3.

But the

exhaustion requirement must be satisfied; this Court cannot lift it.

Braden, 410 U.S. at 490.

Petitioner also “object[s] to all prior continuances that were granted” in his state court case. Doc.
11, p. 3. However, the objection procedure available in this Court is limited to objections to the
Magistrate Judge’s Report and Recommendation, not to rulings in state court. Finally, petitioner
appears to purport to move to dismiss the state court indictment.

Id., p. 1 (“requesting a

crim.R.48(B)” dismissal); see also Doc. 13 (same). But such a motion must be filed in state court, not
in federal court, to satisfy the exhaustion requirement.
Accordingly, the Court ADOPTS the Report and Recommendation (Doc. 10),
OVERRULES petitioner’s objections (Doc. 11), and DISMISSES the petition without prejudice.
Petitioner’s motion requesting dismissal (Doc. 13) is DENIED.
A certificate of appealability should not issue because, for the reasons stated in the Report
and Recommendation, 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). Finally, the Court certifies pursuant to 28 U.S.C. §1915(a)(3) that an appeal of
this order would not be taken in good faith for the reasons stated in the Report and
Recommendation. Therefore, the Court declines denies petitioner leave to proceed on appeal in
forma pauperis. See Fed. R. App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).

s/ James L. Graham
JAMES L. GRAHAM
United States District Judge

DATE: November 26, 2024

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