United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
L. Bunning, United States District Judge
McBee is a pre-trial detainee currently confined at the
Campbell County Detention Center (“CCDC”) in
Newport, Kentucky. McBee is being held in the CCDC pending
resolution of state criminal charges filed against him by the
Commonwealth of Kentucky in Commonwealth v. McBee,
No. 16-CR-158 (Cir. Ct. Campbell Co. 2016).Proceeding without
counsel, McBee has filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241. (Doc. # 1)
Court conducts an initial review of habeas corpus petitions.
28 U.S.C. § 2243; Alexander v. Northern Bureau of
Prisons, 419 Fed.Appx. 544, 545 (6th Cir. 2011). A
petition will be denied “if it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief.” Rule 4 of the Rules Governing
§ 2254 Cases in the United States District Courts
(applicable to § 2241 petitions pursuant to Rule 1(b)).
The Court evaluates McBee's petition under a more lenient
standard because he is not represented by an attorney.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). At this
stage of the proceedings, the Court accepts the
petitioner's factual allegations as true and construes
all legal claims in his favor. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007).
matter of clarification, McBee's petition names as
Respondents Michelle Snodgrass (Campbell County
Commonwealth's Attorney), Judge Julie Reinhardt Ward
(Campbell County Circuit Court Judge) and Rachael Neugent,
McBee's current “hybrid” attorney, appointed
after McBee had a disagreement with his public defender and
sought to represent himself. (Doc. #1 at 8). However, the
correct respondent is the warden of the facility where the
petitioner is confined. Rumsfeld v. Padilla, 542
U.S. 426, 434-435 (2004) (recognizing that the proper
respondent to a petitioner's habeas petition is the
individual with the ability to produce the petitioner before
the habeas court). See also Rules Governing Section
2254 Cases in the United States District Courts, Rule 2(a).
According to the website for the CCDC, the Jailer of the
facility is James A. Daley. See https://ccdc.ky.gov
(last visited, May 29, 2018). Thus, the Clerk of Court is
instructed to substitute Daley as the Respondent in this
case. For this reason, McBee's Motion to Strike Racheal
O'Hearen-Neugent as Respondent in this proceeding (Doc. #
6) will be denied as moot.
to the merits of McBee's petition, in March 2005, after
pleading guilty to one count of conspiracy to manufacture, to
distribute, and to possess with intent to distribute 50 grams
or more of methamphetamine, McBee was sentenced by the United
States District Court for the Middle District of Tennessee to
a term of imprisonment of 151 months, to be followed by a
three-year term of supervised release. United States v.
McBee, 3:03-cr-211-1 (M.D. Tenn. 2003). According to
McBee, he was released from federal prison in Colorado and
reported to the Middle District of Tennessee for his term of
supervised release, which began on July 23, 2015. (Doc. # 1
at 14). After an initial violation of the terms of
McBee's supervised release, McBee and the United States
agreed that McBee would enter into a 28-day inpatient program
and that, upon his discharge, he would return to his prior
supervised release conditions. The district court held a
hearing on the matter on December 1, 2015, found this
agreement acceptable, and further ordered a status conference
to be held on February 1, 2016. United States v.
McBee, 3:03-cr-211-1 at R. 94 (M.D. Tenn. 2003).
However, before this status conference occurred, a
Superseding Petition was filed, pursuant to which a warrant
was issued for the arrest of McBee, who had absconded.
Id. at R. 97.
to McBee, on January 10, 2016, in Newport, Kentucky, a man
called 911 after assaulting McBee with a deadly weapon and
reported that McBee had tried to steal his car. (Doc. # 1 at
14). McBee states that, when police arrived on the scene, he
told them he was “wanted” and the police ran his
name and learned of the federal warrant. Id. He was
then arrested by the Newport police officers on the federal
warrant, not the robbery allegations. He alleges that he was
then served with the first degree robbery charges on January
12, 2015, while he was confined in the CCDC on the federal
his § 2241 petition references various complaints
regarding his multiple appointed public defenders and hybrid
attorneys, the judge and prosecutor assigned to his case, and
the evidence expected to be introduced against him in his
criminal trial, the gist of his claims (as summarized by
McBee) are: 1) his rights to a speedy trial are being
violated in his pending Kentucky criminal case (Doc. # 1 at
6); 2) the Respondent does not have jurisdiction over his
person, in violation of the Supremacy Clause, Article VI,
Section 2 of the United States Constitution; and 3) the
delays in his Kentucky state criminal case are directly
violating his rights to a speedy trial in his federal
supervised release violation proceedings pending in the
United States District Court for the Middle District of
Tennessee. (Doc. # 1 at 16). He requests that the Court order
that he be released to federal authorities and that he be
immediately provided a speedy trial in his state criminal
proceedings. Id. at 19.
habeas corpus petition filed under § 2241 by a pretrial
detainee in state custody may be used to challenge his
prosecution prior to judgment, Phillips v. Court of
Common Pleas, Hamilton Co., Ohio, 668 F.3d 804, 809
(6th Cir. 2012), the instances in which a pretrial detainee
may do so are “rare” and “such claims are
extraordinary.” Christian v. Wellington, 739
F.3d 294, 297 (6th Cir. 2014). Indeed, “although §
2241 establishes jurisdiction in the federal courts to
consider pretrial habeas corpus petitions, the courts should
abstain from the exercise of that jurisdiction if the issues
raised in the petition may be resolved either by trial on the
merits in the state courts or by other state procedures
available to the petitioner.” Atkins v. People of
State of Mich., 644 F.2d 543, 546 (6th Cir. 1981). As
further explained by the United States Court of Appeals for
the Sixth Circuit in Atkins:
Abstention from the exercise of the habeas corpus
jurisdiction is justified by the doctrine of comity, a
recognition of the concurrent jurisdiction created by our
federal system of government in the separate state and
national sovereignties. Intrusion into state proceedings
already underway is warranted only in extraordinary
circumstances. Thus the doctrine of exhaustion of state
remedies has developed to protect the state courts'
opportunity to confront initially and resolve constitutional
issues arising within their jurisdictions and to limit
federal judicial interference in state adjudicatory
Id. See also Gully v. Kunzman, 592 F.2d
283, 286 (6th Cir. 1979) (acknowledging federal courts'
authority to consider a habeas corpus petition before a
judgment of conviction is entered, but noting that
“considerations of federalism counsel strongly against
exercising the power except in the most extraordinary
“[p]rinciples of comity and federalism require federal
courts to abstain from deciding pre-conviction habeas
challenges unless the petitioner demonstrates that: (1) he
has exhausted available state court remedies, and (2)
“special circumstances” warrant federal
intervention.” Brown v. Bolton, No.
3:09-cv-P513-S, 2010 WL 1408014 (W.D. Ky. April 1, 2010).
Indeed, “[h]abeas petitioners 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.” Phillips, 668 F.3d at 810. See
also Fisher v. Rose, 757 F.2d 789, 792 (6th Cir.
1985)(noting that “exhaustion of state remedies is
required in the absence of unusual circumstances, ...and has
often been required when a petitioner asserts in a petition
for a writ of habeas corpus prior to trial that his right to
a speedy trial had been violated.”)(citations omitted).
respect to McBee's two claims that his speedy trial
rights are being violated, McBee states that, although his
original attorney in his state criminal proceedings refused
to assert his speedy trial rights on his behalf, once he
began to represent himself in August-September 2016, he
asserted his speedy trial rights in open court. (Doc. #1 at
p. 7-9). He also states that he filed motions raising his
speedy trial rights in October 2016, January 2017, September
7, 2017, and September 8, 2017 and these were all orally
denied by the court. (Id. at p. 9-11). However,
there is no ...