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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GARY ABERNATHY,

Petitioner,

CASE NO. 2:08-CV-14663

v. HONORABLE VICTORIA A. ROBERTS

UNITED STATES MARSHAL SERVICE,

Respondent.

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OPINION AND ORDER SUMMARILY DISMISSING

PETITION FOR WRIT OF HABEAS CORPUS

I. Introduction

This is a habeas case brought pursuant to 28 U.S.C. § 2241. Gary Abernathy

(“Petitioner”) is a federal pre-trial detainee currently incarcerated at the Wayne County Jail in

Detroit, Michigan. In his pleadings, he alleges violations of his speedy trial rights and the lack

of an arraignment, judicial and prosecutorial misconduct, ineffective assistance of counsel,

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

pending before this Court. Petitioner seeks immediate release from custody.

Petitioner previously moved to dismiss his criminal case on speedy trial grounds, but this

Court denied his motion. Petitioner has also filed a prior federal habeas petition raising claims

similar to those raised in this petition, which was dismissed without prejudice as premature. See

Abernathy v. United States Marshal Service, No. 2:08-CV-14169 (E.D. Mich. Oct. 14, 2008)
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The Court obtained this information from its own database. 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 v. Howes, No. 05-CV-73839-DT, 2005 WL 3021966, *1, n. 1 (E.D. Mich. Nov. 10, 2005)

(citing cases).

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(Cleland, J.).1 For the reasons set forth herein, the Court similarly dismisses without prejudice

this habeas petition.

II. Discussion

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

must undertake a preliminary review of the petition to determine whether “it plainly appears

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 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 government. See Allen, 424 F.2d at

141; Robinson v. Jackson, 366 F. Supp. 2d 524, 525 (E.D. Mich. 2005).
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As noted, Petitioner is a federal pre-trial detainee who is challenging the constitutionality

of his ongoing criminal proceedings before this Court. He asserts a speedy trial violation, as

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

detainee may bring a federal habeas action to demand a speedy trial, but may 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 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)).

Petitioner seeks immediate release from custody in this case and the issues he raises in
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Petitioner raised his speedy trial claim in his criminal proceedings before this Court and was

denied relief, but 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). 

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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.2

 Petitioner must await resolution of his claims on direct appeal,

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

III. Conclusion

For the reasons stated, the Court concludes that the present habeas petition is premature

and that the Court cannot grant Petitioner the relief he seeks in this action. Accordingly, the

Court DISMISSES WITHOUT PREJUDICE the petition for a writ of habeas corpus.

IT IS SO ORDERED.

S/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: November 10, 2008

The undersigned certifies that a copy of this

document was served on the attorneys of record

and Gary Abernathy by electronic means or U.S.

Mail on November 10, 2008.

s/Carol A. Pinegar 

Deputy Clerk