Prewitt v. Oldham

Filing 4

ORDER Denying Petition Pursuant to 28 U.S.C. s 2241; Order Certifying Appeal Not Taken in Good Faith; and Order Denying Leave to Proceed in Forma Pauperis on Appeal. Signed by Judge S. Thomas Anderson on 9/26/14. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

LARRY PREWITT, JR.,
Petitioner,
No. 13-2991-STA-cgc
vs.
BILL OLDHAM,
Respondent.
______________________________________________________________________________
ORDER DENYING PETITION PURSUANT TO 28 U.S.C. § 2241
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
______________________________________________________________________________
Before the Court is the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241
(the “§ 2241 Petition”) filed by Petitioner Larry Prewitt, Jr., booking number 13119872, who
was at the time of this submission, a pretrial detainee at the Shelby County Criminal Justice
Complex in Memphis, Tennessee.

(ECF No. 1)

For the reasons stated below, the Court

DENIES the § 2241 Petition.
I.

BACKGROUND
A.

State Court Procedural History

Petitioner Prewitt was arrested on December 17, 2011. On August 8, 2012, Prewitt was
indicted for attempted second degree murder, two counts of aggravated assault, employing a
firearm with intent to commit a felony, and two counts of possession of a firearm by a convicted
felon. See http://jssi.shelbycountytn.gov (Indictment No. 1204110). Plaintiff posted a $150,000
bond on July 4, 2012. He was arrested on May 28, 2013, for domestic assault resulting in bodily

harm. That arrest resulted in the revocation of his bond for Indictment No. 1204110. The
domestic violence charge was subsequently resolved by nolle prosequi on July 18, 2013. See id.
(Booking No. 13119854). Indictment No. 1204110 was resolved by nolle prosequi on February
12, 2014. Prewitt is currently being prosecuted in federal court for violating 18 U.S.C. § 922(g).
See United States v. Larry Prewitt, Jr., No. 13-20372-JTF.
B.

Procedural History of Prewitt’s § 2241 Petition

On December 17, 2013, while incarcerated at the Shelby County Jail, Prewitt filed the
instant petition under 28 U.S.C. § 2241. (ECF No. 1.) Petitioner admits that he was “not
challenging a conviction or sentence” (ECF No. 1 at 5), but is challenging the Shelby County
Criminal Court’s revocation of his bond. (Id. at 2.)
II.

ANALYSIS OF PETITIONER’S CLAIMS
Prewitt seeks relief under 28 U.S.C. § 2241(c)(3), which authorizes federal courts to

issue writs of habeas corpus on behalf of a prisoner who “is in custody in violation of the
Constitution or laws or treaties of the United States[.]” Prewitt is not entitled to relief under 28
U.S.C. § 2241. Except in extraordinary circumstances not present here, the habeas remedy
cannot be invoked to raise defenses to a pending state criminal prosecution. See, e. g., Younger
v. Harris, 401 U.S. 37 (1971) (declining to enjoin prosecution under an unconstitutional statute);
Fenner v. Boykin, 271 U.S. 240 (1926); Ex parte Royall, 117 U.S. 241 (1886); Ballard v.
Stanton, 833 F.2d 593 (6th Cir. 1987); Zalman v. Armstrong, 802 F.2d 199 (6th Cir. 1986). In
this case, the petition fails to demonstrate that Petitioner could not challenge the state court
ruling in the state-court proceeding.

Moreover, the petition failed to allege that there are

extraordinary circumstances warranting federal intervention. Stimpson v. Stanton, No. 87-6180,
1988 WL 57480 (6th Cir. June 7, 1988).

Even actual innocence of the crime charged is insufficient to warrant a federal injunction
against a state criminal prosecution. Federal injunctions against state criminal proceedings can
be issued only “under extraordinary circumstances where the danger of irreparable loss is both
great and immediate.” Younger v. Harris, 401 U.S. at 45 (internal quotation marks & citation
omitted). The Supreme Court emphasized that
[c]ertain types of injury, in particular, the cost, anxiety, and inconvenience of having to
defend against a single criminal prosecution, could not by themselves be considered
“irreparable” in the special legal sense of that term. Instead, the threat to the plaintiff's
federally protected rights must be one that cannot be eliminated by his defense against a
single criminal prosecution.
Id. at 46, 91 S. Ct. at 751.
“Three factors determine whether a federal court should abstain from interfering in a state
court action: (1) whether the underlying proceedings constitute an ongoing judicial proceeding,
(2) whether the proceedings implicate an important state interest, and (3) whether there is an
adequate opportunity in the state proceedings to raise a constitutional challenge.” Fieger v. Cox,
524 F.3d 770, 775 (6th Cir. 2008) (citation omitted). All factors are satisfied in this case. When
the petition was filed, the prosecution was ongoing, the State has an interest in enforcing its
criminal laws, and Petitioner had an adequate opportunity to raise his challenge in the state court
proceedings.
Because it appears from the application that Petitioner is not entitled to a writ of habeas
corpus, the Court will not issue an order for Respondent to show cause why the writ should not
be granted. The § 2241 Petition is DENIED. Judgment shall be entered for Respondent.
III.

APPEAL ISSUES
The Court must also determine whether to issue a certificate of appealability (“COA”).

The statute provides:

(1)

Unless a circuit justice or judge issues a certificate of appealability, an appeal may
not be taken to the court of appeals from(A)

the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court; or

(B)

the final order in a proceeding under section 2255.

(2)

A certificate of appealability may issue under paragraph (1) only if the applicant
has made a substantial showing of the denial of a constitutional right.

(3)

The certificate of appealability under paragraph (1) shall indicate which specific
issue or issues satisfy the showing required by paragraph (2).

28 U.S.C. § 2253(c); see also Fed. R. App. P. 22(b); Lyons v. Ohio Adult Parole Auth., 105 F.3d
1063, 1073 (6th Cir. 1997) (district judges may issue certificates of appealability). The COA
requirement is applicable in this case pursuant to 28 U.S.C. § 2253(c)(1)(A). Greene v. Tenn.
Dep’t of Corr., 265 F.3d 369 (6th Cir. 2001).
A COA may issue only if the petitioner has made a substantial showing of the denial of a
constitutional right, and the COA must indicate the specific issue or issues that satisfy the
required showing. 28 U.S.C. §§ 2253(c)(2) & (3). A “substantial showing” is made when the
petitioner demonstrates that “reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003); see also Henley v. Bell, 308 F. App’x 989, 990 (6th Cir. 2009) (per curiam)
(same). A COA does not require a showing that the appeal will succeed. Miller-El, 537 U.S. at
337; Caldwell v. Lewis, 414 F. App’x 809, 814-15 (6th Cir. 2011). Courts should not issue a
COA as a matter of course. Bradley v. Birkett, 156 F. App’x 771, 773 (6th Cir. 2005).

In this case, there can be no question that Petitioner’s claims are meritless for the reasons
previously stated. Because any appeal by Petitioner on the issue raised in his Petition does not
deserve attention, the Court DENIES a certificate of appealability.
Rule 24(a)(1) of the Federal Rules of Appellate Procedure provides that a party seeking
pauper status on appeal must first file a motion in the district court, along with a supporting
affidavit. However, if the district court certifies that an appeal would not be taken in good faith,
or otherwise denies leave to appeal in forma pauperis, the prisoner must file his motion to
proceed in forma pauperis in the appellate court. See Fed. R. App. P. 24(a)(4)-(5). In this case,
for the same reasons the Court denies a certificate of appealability, the Court determines that any
appeal would not be taken in good faith. It is therefore CERTIFIED, pursuant to Federal Rule of
Appellate Procedure 24(a), that any appeal in this matter would not be taken in good faith.
Leave to appeal in forma pauperis is DENIED.1

Entered this 26th day of September 2014.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE

1

If Petitioner files a notice of appeal, she must pay the full $505 appellate filing fee or file a motion
to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of Appeals within thirty (30) days of
the date of entry of this order. See Fed. R. App. P. 24(a)(5).