UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Kimberly Khamisi, Case No. 1:18-cv-255

Petitioner, Barrett, J.

Bowman, M.J.

v.

Butler County Sheriff, 

Respondent.

OPINION & ORDER

This matter is before the Court on the Magistrate Judge’s April 19, 2018 Report 

and Recommendation (“R&R”) recommending Petitioner’s claims be dismissed for failure 

to exhaust available state remedies. (Doc. 2). Petitioner filed timely objections on April 

30, 2018. (Doc. 3). 

When objections to a magistrate judge’s order are received on a dispositive matter, 

the assigned district judge “must determine de novo any part of the magistrate judge’s 

disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). After review, 

the district judge “may accept, reject, or modify the recommended decision; receive 

further evidence; or return the matter to the magistrate judge with instructions.” Id.; see 

also 28 U.S.C. § 636(b)(1). 

Petitioner has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 

2254. (Doc. 1).1 Under 28 U.S.C. § 2241(c)(3), federal courts may grant habeas relief 

 1

As the Magistrate Judge noted, this Court has previously dismissed a federal habeas 

petition by Petitioner for failure to exhaust all state court remedies, and Petitioner raises the 

same claims in the instant case. See Khamisi v. Ohio, No. 1:18-cv-111 (S.D. Ohio Feb 15, 

2018) (Bertelsman, J.; Litkovitz, M.J.).
2

on claims of a state pre-trial detainee—such at Petitioner—if she is in custody in violation 

of the Constitution or laws or treaties of the United States. Phillips v. Hamilton Cnty. Ct. 

of Common Pleas, 668 F.3d 804, 809 (6th Cir. 2012). However, as the Magistrate Judge 

explained, the failure to exhaust state remedies precludes a pre-trial detainee from 

proceeding with federal habeas relief. See Humphrey v. Plummer, 840 F. Supp.2d 1040, 

1042-43 (S.D. Ohio 2011) (citing Atkins v. Michigan, 644 F.2d 543, 546 (6th Cir. 1981)). 

Petitioner has not alleged that she has exhausted her state-court remedies.2

Moreover, under the Younger abstention doctrine, a federal court should not

interfere with ongoing state court criminal proceedings absent a “great and immediate” 

threat of “irreparable injury.” Younger v. Harris, 401 U.S. 37, 46 (1941). As the Magistrate 

Judge explained, the Sixth Circuit has only recognized three exceptions to the Younger

abstention doctrine which would permit a federal court to consider a pretrial habeas 

corpus petition: (1) when a petitioner seeks a speedy trial; (2) when the petitioner seeks 

to avoid a second trial for violation of the Double Jeopardy Clause; and (3) when the 

petitioner seeks to avoid the retrial of the case instead of accepting a plea offer first 

rejected due to ineffective counsel. Atkins v. Michigan, 644 F.2d 543, 546-47 (6th Cir. 

1981); Delk v. Atkinson, 665 F.2d 90, 93 (6th Cir. 1981); Turner v. Tennessee, 858 F.2d 

1201, 1204 (6th Cir. 1988), vacated on other grounds, 492 U.S. 902 (1989). The 

Magistrate Judge concluded that none of these exceptions apply; and Petitioner does not 

address these exceptions in her objections. 

 2

Petitioner does state that she was prevented from sending mail from jail to the state 

appeals court. (Doc. 4, PageID 13). However, Petitioner also explains that her daughter was 

able to carry her mail out of prison for her (Doc. 3 at PageID 13); and the Court notes that 

Petitioner was able to successfully file the present claim in federal court.
3

Based on the foregoing, the Magistrate Judge’s April 19, 2018 R&R (Doc. 2) is 

ADOPTED. It is hereby ORDERED that:

1. Petitioner’s petition for a writ of habeas corpus (Doc. 1) is DISMISSED 

WITHOUT PREJUDICE;

2. A request for a certificate of appealability is DENIED because 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. Pursuant to 28 U.S.C. § 1915(a)(3), this Court certifies that with respect to any 

application by Petitioner to proceed on appeal in forma pauperis, an appeal of 

this Order would not be taken in “good faith,” and therefore Petitioner is 

DENIED leave to appeal in forma pauperis. See Fed. R. App. P. 24(a); Kincade 

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

4. This matter is CLOSED and TERMINATED from the active docket of this Court.

IT IS SO ORDERED.

_____/s/ Michael R. Barrett_______________

Michael R. Barrett, Judge

United States District Court 
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Research:

1. Petitioner’s claims are not extraordinary circumstances

a. “Younger abstention is appropriate until Plaintiffs’ state court criminal 

proceedings have ended, meaning that all available appellate remedies 

have either been exhausted or waived”

i.

ii. The Younger abstention doctrine “derives from a desire to prevent 

federal courts from interfering with the functions of state criminal 

prosecutions and to preserve equity and comity.” Doe v. Univ. of 

Ky., 860 F.3d 365, 368 (6th Cir. 2017) (citing Younger, 401 U.S. at 

44). Under the doctrine, federal courts “should abstain from 

deciding a matter that implicates pending state criminal 

proceedings.” Gonnella v. Johnson, 115 F. App’x 770, 771 (6th Cir. 

2004). Abstention is appropriate when three factors are satisfied: 

“(1) state proceedings are pending; (2) the state proceedings 

involve an important state interest; and (3) the state proceedings 

will afford the plaintiff an adequate opportunity to raise his 
5

constitutional claims.” Kelm v. Hyatt, 44 F.3d 415, 419 (6th Cir. 

1995) (citing Nilsson v. Ruppert, Bronson & Chicarelli Co., 888 F.2d 

452, 454 (6th Cir. 1989)). See also Gonnella, 115 F. App’x at 771-

72.

iii. The party seeking to avoid abstention has the burden to establish 

state proceedings are inadequate. Goodwin v. County of Summit, 

Ohio, 45 F. Supp.3d 692, 701 (N.D. Ohio 2014) (citing Nimer v. 

Litchfield Tp. Bd. of Trustees, 707 F.3d 699, 701 (6th Cir. 2013); 

Am. Family Prepaid Legal Corp. v. Columbus Bar Ass'n, 498 F.3d 

328, 334 (6th Cir. 2007); Squire v. Coughlan, 469 F.3d 551, 556 

(6th Cir. 2006) ). Plaintiffs must show that state law “clearly bars the 

interposition of the constitutional claims” to avoid abstention. Id. 

(citing Am. Family, 498 F.3d at 334 (emphasis in original) (quoting 

Squire, 469 F.3d at 556) (further citation and quotation marks 

omitted); Middlesex County Ethics Comm. v. Garden State B. 

Ass'n, 457 U.S. 423, 432 (1982) (where pending state proceedings 

implicate important state interests, “a federal court should abstain 

‘unless state law clearly bars the interposition of the constitutional 

claims’ ”) ).

b. Duplicative with 1:18-cv-087

i. Other claims against Judge Ruehlman are still proceeding through 

the state court