McElhaney v. United States of America

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Petitioner's objections are overruled and the Report of the Magistrate Judge 8 is ADOPTED as the opinion of the District Court. The application for writ of habeas corpus is DISMISSED with prejudice. Petitioner is hereby DENIED a certificate of appealability sua sponte. Any and all motions which may be pending in this civil action are hereby DENIED. Signed by Judge Leonard Davis on 01/12/15. (mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
LARRY JOE McELHANEY

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v.

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UNITED STATES OF AMERICA

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CIVIL ACTION NO. 6:14cv698

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Petitioner Larry McElhaney proceeding pro se, filed this application for the writ of
habeas corpus under 28 U.S.C. §2241 apparently complaining of the legality of his pending
prosecution. This Court ordered that the matter be referred to the United States Magistrate Judge
pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules
for the Assignment of Duties to United States Magistrate Judges.
McElhaney is awaiting trial in cause no. 6:13cv114, a criminal prosecution in the Eastern
District of Texas. He asserts that the indictment is defective because the district court can only
imprison someone pursuant to an Act of Congress; he argues that the three counts of his indictment
do not allege violations of federal law and fail to give him proper notice of the time, date, or place
where he is alleged to have violated federal law.
After review of the pleadings, the Magistrate Judge issued a Report recommending that the
petition be dismissed. The Magistrate Judge stated that in the absence of exceptional circumstances,
in criminal cases the regular judicial procedure should be followed and habeas corpus should not be
granted in advance of a trial, citing Jones v. Perkins, 245 U.S. 390, 391-92 (1918) and Stack v.
Boyle, 342 U.S. 1, 6-7 (1951). The Magistrate Judge stated that an adequate remedy for challenging
the validity of the indictment exists through a Fed. R. Crim. P. 12 motion, and that McElhaney did

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not show that exceptional circumstances existed justifying the use of a pre-trial habeas corpus
petition to short-circuit the normal judicial process.
In his objections to the Report, McElhaney argues that it is not correct to hold that all
criminal proceeding remedies must be exhausted before §2241 relief may be granted, citing United
States ex rel. Scranton v. New York, 532 F.2d 292 (2nd Cir. 1976). That case held that a defendant
under a state indictment for murder was “in custody” for purposes of federal habeas corpus where
she was free on parole or on her own recognizance, but that the principles of federalism prevented
the federal courts from affording habeas corpus relief where state remedies had not been exhausted.
This decision is plainly distinguishable from the present case, in which McElhaney seeks to use
federal habeas corpus to short-circuit a pending federal criminal proceeding.
Next, McElhaney argues that §2241 does not contain a requirement of exhaustion of
administrative remedies, and whether to require such exhaustion is at the discretion of the court. The
Magistrate Judge’s Report did not concern exhaustion of administrative remedies, but rather the fact
that a pre-trial habeas corpus petition cannot serve to litigate his defenses in advance of his criminal
trial. Cf. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 493, 93 S.Ct. 1123, 1129
(1973) (stating that “nothing that we have said would permit the derailment of a pending state
proceeding by an attempt to litigate constitutional defenses prematurely in federal court”).
Third, McElhaney states that “in view of a violation of the Constitution or laws of the United
States, under 28 U.S.C. §2241(c)(3), an order for a writ of habeas corpus must be extended to a
federal prisoner regardless of exhaustion of remedies,” citing Brown v. Lundgren, 528 F.2d 1050
(5th Cir. 1975). This case affirmed the denial of a federal prisoner’s habeas petition challenging a
decision of the United States Board of Parole denying him eligibility for parole until his mandatory
release date; the discussion of available remedies revolves around the Administrative Procedures Act
and its application to the Parole Board. Brown plainly has no application to McElhaney’s case.
Finally, McElhaney cites what he believes to be “exceptional circumstances,” including
assertions that he has received ineffective assistance of counsel in that his former attorneys did not
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investigate properly, failed to move for suppression of evidence, and failed to provide him with
copies of discovery so that he could determine his sentencing guideline range. He also raises a claim
of “cumulative error.” None of these circumstances provide any basis for permitting McElhaney to
litigate his defenses to a criminal prosecution through a pre-trial habeas corpus petition. His
objections are without merit.
The Court has conducted a careful de novo review of the pleadings in the cause, the Report
of the Magistrate Judge, and the Petitioner’s objections thereto. Upon such de novo review, the
Court has concluded that the Report of the Magistrate Judge is correct and that the Petitioner’s
objections are without merit. It is accordingly
ORDERED that the Petitioner’s objections are overruled and the Report of the Magistrate
Judge (docket no. 8) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the above-styled application for the writ of habeas corpus be and hereby is
DISMISSED with prejudice. It is further
ORDERED that the Petitioner Larry McElhaney is hereby DENIED a certificate of
appealability sua sponte. Finally, it is
ORDERED that any and all motions which may be pending in this civil action are hereby
DENIED.
So ORDERED and SIGNED this 12th day of January, 2015.

__________________________________
LEONARD DAVIS
UNITED STATES DISTRICT JUDGE

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