Wood v. Olejasz

• Decision Date: 10 August 2021
• Docket Number: Civil Action 1:21cv103
• Parties: KEITH ALLEN WOOD, Petitioner, v. MICHAEL J. OLEJASZ, Respondent.
• Court: U.S. District Court — Northern District of West Virginia

KEITH ALLEN WOOD, Petitioner,
v.
MICHAEL J. OLEJASZ, Respondent.

Civil Action No. 1:21cv103

United States District Court, N.D. West Virginia

August 10, 2021

Judge Kleeh

MICHAEL JOHN ALOI UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

This case was initiated on July 23, 2021 with the filing of a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 by counsel on Petitioner's behalf, ^[1] along with a Motion for Stay of State Court Proceedings pursuant to 28 U.S.C. § 2251, or, in the Alternative, for Expedited Consideration of the Petition for Writ of Habeas Corpus. ECF Nos. 1, 2.

Petitioner paid his filing fee at the time he filed the petition. See ECF No. 1.

This matter is pending before the undersigned for an initial review pursuant to 28 U.S.C. § 636(b)(1)(B).

I. Petitioner's Claims for Relief

The petition asserts that Petitioner is a defendant in a criminal prosecution pending before the Respondent in Brooke County, West Virginia. Petitioner has not been adjudged guilty and is currently awaiting trial, which has been set for August 10, 2021. Petitioner is presently free, subject to pretrial bond and contends that pursuant to Supreme Court law, he is therefore “in custody” for purposes of this petition.^[2]

1

According to his petition, in the original indictment, Wood is charged with two counts of sexual assault in the first degree, in violation of W.Va. Code Ann. §§ 61-8B-3(a)(2), (b), and (c)^[3]and two counts of sexual abuse by a custodian, in violation of W.Va. Code Ann. § 61-8D-5, in Case No. 18-F-21. See ECF No. 1 at 1; see also ECF No. 1-2 at 13 - 15.

The case was previously set for trial on February 16, 2021, but on the first day of trial, during opening statement, defense counsel “ran so far afoul of previously entered evidentiary Court Orders that . . . [the circuit court] had no choice but to grant the State's motion for a mistrial. See Order, ECF No. 1-2 at 9. In the next term of court, on March 1, 2021, the State filed a Superseding Indictment containing six additional counts. Id.; see also ECF No. 1-2 at 16 - 21. On March 18, 2021, Wood, through counsel, filed a Motion to Dismiss on Double Jeopardy Grounds, arguing that because a jury had been impaneled, double jeopardy applied and a second trial was barred, including trial on any new charges in the Superseding Indictment. Id.; see also ECF No. 12 at 22, ECF No. 1-2 at 50. By Order entered June 8, 2021, the motion was granted in part and denied in part. See ECF No. 1-2 at 9. Petitioner's request to dismiss all charge was denied as “untenable;” the circuit court found that because Petitioner's own counsel violated the pre-trial evidentiary orders, Petitioner could not “enjoy the fruits of double jeopardy acquittal when his actions created a ‘manifest necessity' to discharge the jury and retry the case;” the Superseding Indictment was dismissed with prejudice as a violation of the mandatory joinder rule set forth in Rule 8(a)(2) of the W.Va. Rules of Crim. Pro.; but the initial indictment remained and the case was reset for trial on August 10, 2021 Id. at 9 - 11.

2

On June 30, 2021, Wood, through counsel, filed a petition for writ of prohibition and a separate motion for stay in the WVSCA in Case No. 21-0518. See ECF No. 1-10 at 2. On July 12, 2021, the Respondent filed a response in opposition to the petition and a separate motion for leave to file a supplemental appendix. Id. By Order issued July 15, 2021, the WVSCA denied relief and refused the motion to stay as moot. Id.

On July 21, 2021, in Brooke County Circuit Court Case No. 18-F-21, Wood filed a Motion to Continue Trial Date and Memorandum of Grounds in Support Thereof. See ECF No. 1-11.

On July 23, 2021, again through counsel, Wood filed the instant petition. ECF No. 1. In his petition, Wood argues that he has exhausted his state court remedies by filing the motion to dismiss on double jeopardy grounds in the trial court and then by filing the petition for writ of prohibition in the West Virginia Supreme Court of Appeals (“WVSCA”) [ECF No. 1 at 4]; and double jeopardy applies because the jury was empaneled and sworn in the aborted trial on February 16, 2021. Id. at 4 - 5.

As relief, Petitioner seeks to have his petition granted, prohibiting the criminal trial from going forward on August 10, 2021 or any other date. Id. at 9.

II. Analysis

Title 28 U.S.C. § 2241 provides a remedy when a prisoner “is in custody in violation of the Constitution or laws or treaties of the United States[.]” 28 U.S.C. § 2241(c)(3).^[4]

This court is unable to grant the petitioner his requested relief under 28 U.S.C. § 2241 for several reasons. First, as a criminal defendant on bond, awaiting trial, the petitioner's exclusive federal remedy for alleged unconstitutional confinement is to file a petition for a writ of habeas

3

corpus under 28 U.S.C. § 2241(c)(3), as he has done here, but only after he fully exhausts his state remedies. Although § 2241 contains no express reference to exhaustion of state remedies, courts have held that exhaustion is necessary prior to filing a § 2241 petition in federal court. See, e.g., Braden v. 30^th Judicial Circuit Court, 410 U.S. 484, 490-91 (1973); Moore v. DeYoung, 515 F.2d 437, 442-43 (3rd Cir. 1975).

The petition asserts that the Brooke County Circuit Court denied Wood's motion to dismiss on double jeopardy grounds and that he unsuccessfully filed a Petition for a Writ of Prohibition in the Supreme Court of Appeals of West Virginia (the “WVSCA”). Although the petitioner argues that he has presented the double jeopardy issue to the State's highest court, a petition for...