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McBee v. Daley

United States District Court, E.D. Kentucky, Northern Division, Covington

May 29, 2018



          David L. Bunning, United States District Judge

         Richard 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).[1]Proceeding without counsel, McBee has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. # 1)

         The 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).

         As a 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 (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.


         Turning 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.

         According 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 warrant. Id.

         Although 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.


         While a 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 processes.

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 circumstances”).

         Thus, “[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).

         With 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 ...

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