Mosson v. Napoleon
| Decision Date | 23 December 2013 |
| Docket Number | Case No.: 2:13-14779 |
| Parties | KEITH JAMAR MOSSON, Petitioner, v. SHERIFF BENNY NAPOLEON, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Paul D. Borman
United States District Judge
Keith Jamar Mosson, ("Petitioner"), confined at the Wayne County Jail in Detroit, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2241(c)(3).1 In his pro se application, petitioner challenges his pending prosecution in the Wayne County Circuit Court for one count of armed robbery, Mich. Comp. Laws § 750.529, one count of unlawful imprisonment, Mich. Comp. Laws § 750.349b, one count of extortion, Mich. Comp. Laws § 750.213, one count of first-degree home invasion, Mich. Comp. Laws § 750.110a(2), and being a fourth felony habitual offender, Mich. Comp. Laws § 769.12. For the reasons stated below, the petition for writ of habeas corpus is SUMMARILY DENIED WITHOUT PREJUDICE.
Petitioner was arrested on the above charges on April 10, 2013. Petitioner was arraigned on the warrant on April 12, 2013. Bail was set in the amount of $ 100,00.00.
On May 2, 2013, a preliminary examination was conducted, after which petitioner was bound over to the Wayne County Circuit Court for trial. Petitioner claims that the prosecutor permitted witnesses to commit perjury at the preliminary examination.
Petitioner claims that his first attorney, Ronald McDuffie, filed a meritless motion to quash the information, which was denied. Petitioner asked Mr. McDuffie about the existence of a surveillance videotape and was informed by McDuffie that such a tape did not exist.
Mr. McDuffie was subsequently replaced by another unnamed attorney who has also since been removed or withdrawn from petitioner's case. Petitioner claims that he has been filing his own motions since July, 2013, including motions for the arrest warrant and/or felony information, for discovery, to compel disclosure of a surveillance videotape, and to dismiss or quash the charges. Judge Dana M. Hathaway has written petitioner and informed him that she will only accept legal filings through counsel. Petitioner claims that he has not had an attorney to assist him with his motions for over four months. Petitioner has filed a complaint against Judge Hathaway with the Michigan Judicial Tenure Commission. In spite of this complaint, Judge Hathaway has not recused herself from petitioner's case.
On October 29, 2013, petitioner claims that his attorney requested the 911 recordings and was informed that they had been destroyed. 2 Petitioner alleges that the 911 calls would have been exculpatory.
Petitioner has been in custody for over seven months. Petitioner claims that his speedy trial rights have been violated. Petitioner also claims that his bond is excessive.
Petitioner alleges that the living conditions at the Wayne County Jail are "inhumane." Petitioner specifically claims that there is no ventilation system at the jail, thus exposing him and the other inmates to toxic mold and asbestos. Petitioner also claims that the jail commissary is rarely stocked with postage nor allows inmates to purchase phone credits.
Petitioner claims that he has made attempts to obtain state pre-trial habeas forms from the Wayne County Jail, but claims that the library lacks such forms. Petitioner further claims that the state courts will not release such forms to his family.
Petitioner seeks to have his case removed from the state court to the federal court and also seeks immediate release.3
The instant petition must be dismissed, because petitioner has yet to be convicted of any criminal charges in this case. In the absence of "special circumstances," federal habeas corpus relief is not available to review the merits of an affirmative defense to a state criminal charge prior to a judgment of conviction by a state court. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 489 (1973). A state criminal case is therefore ordinarily ripe for federal habeas review only after the defendant has been tried, convicted, sentenced, and has pursued his or her direct appeals. Allen v. Attorney General of the State of Maine, 80 F. 3d 569, 572 (1st Cir. 1996); See also Hoard v. State of Michigan, No. 05-CV-73136-DT; 2005 WL 2291000, p. 1(E.D. Mich. September 19, 2005). Although federal courts have jurisdiction to hear pre-trial habeas corpus petitions, a federal court should normally abstain from exercising this jurisdiction to consider a pre-trial habeas petition if the issues raised in the petition may be resolved either by trial in the state courts or by other state procedures available to the petitioner. See Atkins v. People of the State of Michigan, 644 F. 2d 543, 545-546 (6th Cir. 1981). Where a habeas petitioner's claims, if successful, would be dispositive of pending state criminal charges, the claims may be exhausted only by presenting the issues at the trial in state court, including claims that provide an affirmative defense to the criminal charges and claims that would "abort a state criminal proceeding, dismiss an indictment, or prevent a prosecution." Moore v. United States, 875 F. Supp. 620, 622 (D. Neb. 1994). The practical effect of this exhaustion requirement is that review of dispositive claims in habeas is not available prior to a state trial. Id.
There are several exceptions to the rule that prejudgment habeas relief is unavailable to a state prisoner. One exception to this general rule is a claim that an impending state trial would violate the Double Jeopardy Clause of the federal constitution. See Klein v. Leis, 548 F. 3d 425, 430, n. 2 (6th Cir. 2008); Moore, 875 F. Supp. at 622, n. 2. Petitioner does not allege that the pending state court charges violate his rights under the Double Jeopardy Clause.
Another exception to this rule would involve a pre-trial habeas petition in which a state prisoner asserted his or her speedy trial rights for the sole purpose of seeking a writ of habeas corpus that would order the state to bring the prisoner to trial in a timely manner. See Atkins v. People of the State of Michigan, 644 F. 2d at 547. Although an attempt to dismiss an indictment or otherwise prevent a prosecution is normally nonattainable by way of pre-trial habeas corpus, an attempt to force the state to go to trial may be made prior to trial, although state courtremedies would still have to be exhausted. Id.
Petitioner contends that the State of Michigan has violated his Sixth Amendment right to a speedy trial by failing to bring him to trial in a timely manner. This Court is unable to provide petitioner with the relief he seeks for two reasons.
First, petitioner seeks dismissal of his pending criminal charges, thus, he would not be entitled to habeas relief. Speedy trial considerations can be a basis for federal pre-trial habeas relief, but only where the petitioner is seeking to force the state to bring him to trial; they are not a basis for dismissing a pending state criminal charge outright. Atkins, 644 F. 2d at 547; Hirsch v. Smitley, 66 F. Supp. 2d 985, 986-987 (E.D. Wis. 1999). To the extent that petitioner is seeking to dismiss this pending state criminal case outright, he would not be entitled to habeas relief because this is something which the Court does not have the power to do. Hirsch, 66 F. Supp. 2d at 987. When a habeas petitioner brings a prejudgment habeas petition seeking dismissal of the charges against him on speedy trial grounds, his habeas action must await the conclusion of state proceedings. See In Re Justices of Superior Court Dept. of Massachusetts Trial Court, 218 F. 3d 11, 18, n. 5 (1st Cir. 2000)(internal citations omitted).
Secondly, to the extent that petitioner is seeking to compel the state court to bring him to trial, his habeas petition is premature because petitioner has yet to exhaust his state court remedies. The habeas corpus statute for pre-trial situations requires the exhaustion of state court remedies. See Dickerson v. State of La., 816 F. 2d 220, 225 (5th Cir. 1987); See also Dillon v. Hutchinson, 82 F. App'x. 459, 461-62 (6th Cir. 2003)(pre-trial habeas petitioner not entitled to habeas relief when he failed to exhaust his interstate detainer act claim with the state courts); Schofs v. Warden, FCI, Lexington, 509 F. Supp. 78, 82 (E.D. Ky. 1981)(where a habeaspetitioner had not properly exhausted his state judicial remedies with respect to his motion to dismiss state charges underlying a detainer against him, the district court would refrain from considering the merits of petitioner's claims concerning those charges).
Petitioner would not be entitled to a writ of habeas corpus to compel the state trial court to bring him to trial in a prompt manner, because he has not exhausted his state court remedies with respect to any such claim. Dickerson, 816 F. 2d at 228. Under Michigan law, if a criminal defendant's pre-trial motion is improperly overruled, he may file an emergency interlocutory appeal with the Michigan appellate courts. See People v. Reid, 113 Mich. App. 262, 268; 317 N.W. 2d 589 (1982). In addition, to the extent that petitioner alleges that the trial court has failed to adjudicate his pre-trial motion, petitioner could seek an order of superintending control from the Michigan Court of Appeals pursuant to M.C.R. 3.302 (D)(1) and M.C.R. 7.203 (C)(1) to order the Wayne County Circuit Court to adjudicate his pre-trial motion. If the Michigan Court of Appeals failed to issue an order of superintending control, petitioner could seek an order of superintending control from the Michigan Supreme Court pursuant to M.C.R. 7.301(A)(6). Finally, to the extent that petitioner suggests that it would be futile to exhaust his remedies in state court, petitioner's failure to pursue his claims in state court ...
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