UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SCOTT ZAKI,

Petitioner, 

v.

UNITED STATES OF AMERICA,

Respondent. 

 /

Case No. 14-cv-13511

Hon. Matthew F. Leitman

OPINION AND ORDER SUMMARILY DISMISSING 

PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE

Scott Zaki, currently confined at the St. Clair County Intervention and

Detention Center in Port Huron, Michigan, has filed a pro se petition for a writ of

habeas corpus under 28 U.S.C. § 2241. Petitioner challenges his ongoing federal

criminal prosecution, United States v. Zaki, No. 14-cr-20281, which is presently

pending before the Honorable Victoria A. Roberts in this Court. Petitioner is

represented by counsel in that proceeding. In the petition, he argues that the

indictment issued by the grand jury is deficient. He seeks release from custody and

dismissal of the indictment. 

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I.

Rule 4, Rules Governing Section 2254 Cases, provides that the court shall

promptly examine a petition to determine “if it plainly appears from the face of the

petition and any attached exhibits that the petitioner is not entitled to relief.” If the

court determines that the petitioner is not entitled to relief, the court shall

summarily dismiss the petition. McFarland v. Scott, 512 U.S. 849, 856 (1994) 

(“Federal courts are authorized to dismiss summarily any habeas petition that

appears legally insufficient on its face”). The Rules Governing Section 2254 cases

may be applied at the discretion of the district court judge to petitions not filed

under § 2254. See Rule 1(b), Rules Governing Section 2254 Cases. Because the

claims raised in the petition are not properly raised in a § 2241 petition at this time,

the Court will dismiss the proceeding without prejudice. 

II.

Petitioner was indicted on May 15, 2014, with a charge of conspiracy to

possess with intent to distribute methylone, 21 U.S.C. §§ 846, 841(a)(1) &

841(b)(1)(C). The criminal trial is scheduled to commence on January 20, 2015. 

Petitioner argues that the indictment is based upon a factually insufficient affidavit

and he seeks habeas relief on that basis. 

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This is the second § 2241 habeas petition filed by Petitioner in the span of

two months. The first petition, assigned to the Honorable Thomas L. Ludington,

concerned the same criminal proceeding at issue in the pending petition and raised

essentially the same claim raised in this petition. That petition was summarily

dismissed pursuant to Rule 4, Rules Governing Section 2254 Cases, because:

[I]t is well established that a criminal defendant cannot file a petition

for writ of habeas corpus to raise defenses to a pending federal

criminal prosecution. See Jones v. Perkins, 245 U.S. 390, 391 (1981)

(“It is well settled 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.”) . . .

Petitioner’s claim that the indictment is defective would be dispositive

of his pending federal criminal charge and must be exhausted at trial

and on appeal in the federal courts before habeas corpus relief would

be available. See Sandles v. Hemingway, 22 F. App’x 557 (6th Cir.

2001). Petitioner therefore cannot challenge his pending federal

prosecution in his current habeas petition. 

Zaki v. United States, No. 14-12884, 2014 WL 4315044 *1 (E.D. Mich. Sept. 2,

2014). 

The posture of the criminal case has not changed since Judge Ludington

summarily dismissed Petitioner’s first petition. The charges remain pending and

Petitioner awaits trial. Therefore, for the same reasons Petitioner’s previous §

2241 petition was dismissed, the Court dismisses the present petition. Because the

claim raised in the petition will not be decided on the merits, the Court’s dismissal

of this action should not prejudice Petitioner’s ability to raise his claim in an

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appropriate setting, e.g., in his criminal case. The dismissal, accordingly, will be

without prejudice. 

III.

Accordingly, for the foregoing reasons, the petition for a writ of habeas

corpus is DISMISSED WITHOUT PREJUDICE. 

/s/Matthew F. Leitman 

MATTHEW F. LEITMAN

UNITED STATES DISTRICT JUDGE 

Dated: October 1, 2014

I hereby certify that a copy of the foregoing document was served upon the parties

and/or counsel of record on October 1, 2014, by electronic means and/or ordinary

mail.

s/Holly A. Monda

Case Manager

(313) 234-5113

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