UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GARY ABERNATHY,

Petitioner,

v. Case No. 2:08-CV-14169

UNITED STATES MARSHAL SERVICE,

Respondent.

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OPINION AND ORDER DISMISSING PETITION FOR A WRIT OF HABEAS CORPUS,

AND DENYING A CERTIFICATE OF APPEALABILITY AND LEAVE TO PROCEED

ON APPEAL IN FORMA PAUPERIS

I. INTRODUCTION

Petitioner Gary Abernathy, a federal pre-trial detainee currently incarcerated at

the Wayne County Jail in Detroit, Michigan, has filed a pro se petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2241 alleging violations of his speedy trial

rights, judicial misconduct, prosecutorial misconduct, ineffective assistance of counsel,

retaliation, vindictive prosecution, and conspiracy in his federal criminal case which is

currently pending in this court before the Honorable Victoria A. Roberts. Petitioner

states that he moved to dismiss his criminal case on speedy trial grounds, but Judge

Roberts denied his motion. Petitioner admits that he has not previously presented his

other claims in federal court. Petitioner seeks immediate release from his alleged illegal

detainment and custody.

II. DISCUSSION

Promptly after the filing of a petition for a writ of habeas corpus, the court must

undertake a preliminary review of the petition to determine whether “it plainly appears
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from the face of the petition and any exhibits annexed to it that the petitioner is not

entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases; see also

28 U.S.C. § 2243. If, after preliminary consideration, the court determines that the

petitioner is not entitled to relief, the court must summarily dismiss the petition. Id., see

also Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to

“screen out” petitions that lack merit on their face).

A federal district court has discretion to apply Rule 4 to summarily dismiss facially

insufficient habeas petitions brought under 28 U.S.C. § 2241. See Rule 1(b), Rules

Governing § 2254 Cases; Perez v. Hemingway, 157 F. Supp. 2d 790, 796 (E.D. Mich.

2001). The court may summarily dismiss a habeas petition if it plainly appears from the

face of the petition and any attached exhibits that the petitioner is not entitled to federal

habeas relief. See McFarland v. Scott, 512 U.S. 849, 856 (1994); Carson v. Burke, 178

F.3d 434, 436 (6th Cir. 1999); Rule 4, Rules Governing § 2254 Cases. No response to

the petition is necessary when the petition is frivolous, obviously lacks merit, or where

the necessary facts can be determined from the petition itself without consideration of a

response from the State. See Allen, 424 F.2d at 141; Robinson v. Jackson, 366 F.

Supp. 2d 524, 525 (E.D. Mich. 2005). After undertaking such a review, the court will

deny without prejudice the petition for a writ of habeas corpus. The court will also deny

a certificate of appealability and leave to proceed on appeal in forma pauperis.

As noted, Petitioner is a federal pre-trial detainee who is challenging the

constitutionality of his ongoing criminal proceedings before the Honorable Victoria A.

Roberts of this court. Petitioner asserts a speedy trial violation, as well as other

constitutional claims, and seeks immediate release from custody. A state pretrial

detainee may bring a habeas action in federal court to demand a speedy trial, but may
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not generally seek habeas relief to forestall state prosecution altogether. See Braden v.

30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 489-91 (1973). Additionally,

although 28 U.S.C. § 2241 establishes federal court jurisdiction to consider pretrial

habeas corpus petitions, courts abstain from the exercise of that jurisdiction if the issues

raised in the petition may be resolved either by trial on the merits or by other available

state procedures. See Atkins v. People of the State of Michigan, 644 F.2d 543, 546 (6th

Cir. 1981).

Similarly, a habeas petition brought pursuant to 28 U.S.C. § 2241 is an

inappropriate remedy for a federal pre-trial detainee to allege that he is being held in

custody in violation of his right to a speedy trial or other constitutional trial rights. See

Hargrove v. Howes, No. 05-CV-73839-DT, 2005 WL 3021966, *1 (E.D. Mich. Nov. 10,

2005) (citing Kotmair v. United States, 143 F. Supp. 2d 532, 534 (E.D.N.C. 2001)). 

“[P]rinciples of judicial economy and efficiency weigh against allowing federal

defendants to file separate habeas petitions where an appropriate remedy is available

with the trial court.” Id. When a federal pre-trial detainee’s habeas claims would be

dispositive of pending federal criminal charges, those claims must be exhausted at trial

and on direct appeal before habeas corpus relief may be available. See Sandles v.

Hemingway, 22 Fed. Appx. 557 (6th Cir. 2001) (citing Moore v. United States, 875 F.

Supp. 620, 624 (D. Neb. 1994); Flowers v. Edwards, 780 F.2d 1020, 1984 WL 13977,

*1 (6th Cir. Nov. 18, 1985) (unpublished)).

In this case, Petitioner seeks immediate release from custody and the issues he

raises in his habeas petition would be dispositive of the underlying federal criminal

charges. Petitioner must therefore exhaust his claims at trial and on direct appeal

before he can maintain a habeas action. He has not done so. First, Petitioner admits
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The court expresses no opinion as to whether any such claims are yet ripe.

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The court obtained this information from the docket of Petitioner’s criminal case, No. 08-

CR-20103. A federal court is permitted to take judicial notice of its own records. See

United States v. Rigdon, 459 F.2d 379, 380 (6th Cir. 1972); Hargrove, supra at *1, n.1

(citing cases).

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that he has not previously presented his judicial misconduct, prosecutorial misconduct,

ineffective assistance of counsel, retaliation, vindictive prosecution, and conspiracy

claims in any federal court.1

 Second, while Petitioner has presented his speedy trial

claim to the trial judge and she has denied relief on that claim, the United States Court

of Appeals for the Sixth Circuit has ruled that it lacks jurisdiction over an interlocutory

appeal of that claim. See United States v. Abernathy, No. 08-1778 (6th Cir. Aug. 5,

2008).2

 Consequently, Petitioner must await resolution of his claims on direct appeal,

should he be convicted, before he may pursue habeas relief. This action is premature.

III. CERTIFICATE OF APPEALABILITY AND IN FORMA PAUPERIS STATUS

A district court, in its discretion, may decide whether to issue a certificate of

appealability (“COA”) at the time the court rules on a petition for a writ of habeas corpus

or may wait until a notice of appeal is filed to make such a determination. See Castro v.

United States, 310 F.3d 900, 903 (6th Cir. 2002). In deciding to dismiss the habeas

petition, the court has studied the record and relevant law, and concludes that it is 

presently in the best position to decide whether to issue a COA. Id. at 901 (quoting

Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1072 (6th Cir. 1997), rev'd in part on

other grounds, 521 U.S. 320 (1997)) (“[Because] ‘a district judge who has just denied a

habeas petition ... will have an intimate knowledge of both the record and the relevant

law,’ “the district judge is, at that point, often best able to determine whether to issue the

COA).
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A certificate of appealability may be issued “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A

petitioner must “sho[w] that reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different manner or that the

issues presented were ‘adequate to deserve encouragement to proceed further.’“ Slack

v. McDaniel, 529 U.S. 473, 484 (2000). When a court denies a habeas claim on

procedural grounds without addressing the merits, a certificate of appealability should

only issue if it is shown that jurists of reason would find it debatable whether the

petitioner states a valid claim of the denial of a constitutional right, and that jurists of

reason would find it debatable whether the district court was correct in its procedural

ruling. Id. at 484-85. Having considered the matter, the court concludes that

reasonable jurists would not find the court’s ruling debatable nor would they find that

Petitioner has made a substantial showing of the denial of a constitutional right. The

court, therefore, will deny a certificate of appealability.

Lastly, the court concludes that Petitioner should not be granted leave to proceed

on appeal in forma pauperis as any appeal would be frivolous. See Fed. R. App. P.

24(a). Accordingly, the court also will deny Petitioner leave to proceed on appeal in

forma pauperis.
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IV. CONCLUSION

For the reasons stated, the court concludes that the instant habeas petition is

premature and that the court cannot grant Petitioner the relief he seeks in this case. 

Accordingly,

IT IS ORDERED that the petition for a writ of habeas corpus is DENIED

WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that the court DENIES a certificate of appealability

and DENIES leave to appeal in forma pauperis.

 S/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: October 14, 2008

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, October 14, 2008, by electronic and/or ordinary mail.

 S/Lisa Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

S:\Cleland\JUDGE'S DESK\C3 ORDERS\08-14169.ABERNATHY.ctb.wpd