UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

ANDRE PRUDEN, Case No. 1:18-cv-196

Petitioner,

Barrett, J.

v. Litkovitz, M.J.
BUTLER COUNTY
SHERIFF,

Respondent.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

ANDRE PRUDEN, Case No. 1:18-cv-196

Petitioner,

Barrett, J.

v. Litkovitz, M.J.
BUTLER COUNTY REPORT AND
SHERIFF, RECOMMENDATION

Respondent.

Petitioner, a pretrial detainee, has filed a petition for a writ of habeas corpus in
connection with his February 2018 arrest by the Middletown Police Department on three counts
of armed robbery and having a gun while under disability. (Doc. 1 at PagelD 2). Petitioner
contends that he was arrested without probable cause, was denied bond, and has been held
without an indictment.' (See id. at PageID 2-3). Because petitioner is a pretrial detainee, the
undersigned construes the instant petition to be a 28 U.S.C. § 2241 petition. See 28 U.S.C. § 2241(c)(3).

On April 30, 2018, this Court entered an Order to show cause why the instant action
should not be dismissed without prejudice as premature or on the ground that petitioner has not
exhausted available state court remedies. (Doc. 4). See Braden v. 30th Judicial Circuit Court of
Kentucky, 410 U.S. 484, 489-90 (1973); Atkins v. Michigan, 644 F.2d 543, 546-47 (6th Cir.
1981). See also Younger v. Harris, 401 U.S. 37, 46 (1971) (stating well-settled principle that a
federal court should not interfere in pending state court criminal proceedings absent the threat of
“irreparable injury” that is “both great and immediate”). Petitioner filed a response on May 21,

2018. (Doc. 5).

'The Butler County, Clerk of Court webpage indicates that a trial is currently set for August 10, 2018, in
petitioner’s criminal case. (Viewed at pa.butlercountyclerk.org/eservices under Case Number CR 2018 02 0355).
This Court may take judicial notice of court records that are available online to members of the public. See Lynch v.
Leis, 382 F.3d 642, 648 n.5 (6th Cir. 2004) (citing Lyons v. Stovall, 188 F.3d 327, 332 n.3 (6th Cir. 1999).


Upon review of the petition (Doc. 1), as well as petitioner’s response (Doc. 5) to the Court’s
April 30, 2018 show cause Order (Doc. 4), the undersigned finds that the petition is subject to
dismissal without prejudice as premature and/or on the ground that petitioner has not exhausted
available state court remedies. See Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts.”

Petitioner’s claims do not constitute the type of “extraordinary circumstances” recognized
by the Sixth Circuit that would permit this Court to intervene in the pending state criminal trial
proceedings. See, e.g., Atkins v. People of the State of Michigan, 644 F.2d 543, 546-47 (6th Cir.
1981) (recognizing exception to Younger abstention doctrine when the petitioner seeks a speedy
trial); Delk v. Atkinson, 665 F.2d 90, 93 (6th Cir. 1981) (recognizing exception to Younger
abstention doctrine when the petitioner seeks to avoid a second trial on the ground that it would
violate the Double Jeopardy Clause); Turner v. Tennessee, 858 F.2d 1201, 1205 (6th Cir. 1988),
vacated on other grounds, 492 U.S. 902 (1989) (recognizing exception to Younger abstention
doctrine when the petitioner seeks to challenge the State’s attempt to retry him rather than permit
him to accept an initial plea offer originally rejected due to ineffective assistance of counsel).
None of these exceptions apply here. Nor does it appear that petitioner has exhausted any
available state court remedies before applying for federal habeas corpus relief.

IT IS THEREFORE RECOMMENDED THAT:

1. Petitioner’s pro se petition for a writ of habeas corpus be DISMISSED without

prejudice to refiling after petitioner has exhausted all available state court remedies.

2. A certificate of appealability should not issue because, for the foregoing reasons,

Under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the Court
“must promptly examine” habeas petitions forwarded by the clerk for initial review and “must dismiss” a habeas
petition “if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in
the district court.” See 28 U.S.C. foll. § 2254.


petitioner has not made a substantial showing of the denial of a constitutional right that is
remediable at this juncture in this proceeding. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
3. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that with respect to any
application by petitioner to proceed on appeal in forma pauperis, an appeal of any Order
adopting this Report and Recommendation would not be taken in “good faith,” and therefore
DENY petitioner leave to appeal in forma pauperis. See Fed. R. App. P. 24(a); Kincade v.

Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).

Date: SRSNB Diet tho
Karen L. Litkovitz

United States Magistrate Judge