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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LEONARR MOORE,

Petitioner,

 CASE NO. 2:09-CV-12673

v. HONORABLE LAWRENCE P. ZATKOFF

WILLIAM FEDERSPIEL,

Respondent.

________________________________/

OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS,

AND DENYING A CERTIFICATE OF APPEALABILITY AND

LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS

I. Introduction

Leonarr Moore (“Petitioner”), a pre-trial detainee confined at the Saginaw County Jail in

Saginaw, Michigan, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. §

2254 challenging his pending prosecution on state criminal charges in the Saginaw County Circuit

Court. In his petition, he asserts that the police illegally searched an apartment in Saginaw,

Michigan, that evidence from the search should be suppressed by the state trial court, and that he

is being held in violation of his Fourth Amendment rights. The state trial court denied his motion

to suppress the disputed evidence. Both the Michigan Court of Appeals and the Michigan Supreme

Court have declined to grant him an interlocutory appeal.

Promptly after the filing of a petition for habeas corpus, the 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

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consideration, the Court determines that the petitioner is not entitled to relief, the Court must

summarily dismiss the petition. Id.; 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 dismissal under Rule 4

includes those petitions which raise legally frivolous claims, as well as those containing factual

allegations that are palpably incredible or false. See Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir.

1999). After undertaking the review required by Rule 4, the Court concludes that the petition for

writ of habeas corpus must be dismissed.

II. Discussion

Petitioner challenges his pending criminal prosecution in the Saginaw County Circuit Court

in this habeas action. A petitioner may bring a habeas action in federal court to demand enforcement

of the state’s affirmative constitutional obligation to bring him promptly to 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); Capps v. Sullivan, 13 F.3d 350, 354 (10th

Cir. 1993). Although 28 U.S.C. § 2241 establishes jurisdiction in the federal courts to consider

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

issues raised in the petition may be resolved either by trial on the merits in the state courts or by

other state procedures available to the petitioner. See Atkins v. People of the State of Michigan, 644

F.2d 543, 546 (6th Cir. 1981). Principles of comity and federalism require federal courts to abstain

from deciding pre-conviction habeas challenges unless the petitioner demonstrates that: (1) he has

exhausted available state court remedies, and (2) “special circumstances” warrant federal

intervention. See Martin-Trigona v. Shiff, 702 F.2d 380, 388 (2d Cir. 1983); Carden v. Montana,

626 F.2d 82, 83-84 (9th Cir. 1980); see also Urquhart v. Brown, 205 U.S. 179, 182 (1907) (a federal

court may “sometimes appropriately interfere by habeas corpus in advance of final action by the

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authorities of the State,” but such cases are “exceptional” and of “great urgency”); Bronston v.

Sabbatine, 12 F.3d 211, 1993 WL 473792, *1 (6th Cir. 1993) (unpublished).

Petitioner has not met his burden here. To the extent that he seeks dismissal of his pending

state charges and release from custody, federal habeas relief is unavailable. See Braden, 410 U.S.

at 493. To the extent that he seeks the suppression of evidence at his upcoming trial, the state trial

court denied his motion to suppress, but the state appellate courts refused to consider the matter on

interlocutory appeal. Petitioner can still present his Fourth Amendment claim to the state courts on

direct appeal should he be convicted. Consequently, Petitioner has not fully exhausted his state

court remedies. See 28 U.S.C. § 2254(c) (“An applicant shall not be deemed to have exhausted the

remedies available in the courts of the State, within the meaning of this section, if he has the right

under the law of the State to raise, by any available procedure, the question presented”); O’Sullivan

v. Boerckel, 526 U.S. 838, 845 (1999). Petitioner has also not shown that special circumstances

warrant federal habeas review. The instant petition is premature and must be dismissed.

III. Conclusion

For the reasons stated, the Court concludes that Petitioner’s challenge to his ongoing state

criminal proceedings is premature and he is not entitled to habeas relief at this time. His petition

shall therefore be dismissed.

Before Petitioner may appeal this Court’s dispositive decision, a certificate of appealability

must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability may

issue “only if the applicant has made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). When a federal court denies a habeas claim on the merits, the substantial

showing threshold is met if the petitioner demonstrates that reasonable jurists would find the district

court’s assessment of the constitutional claim debatable or wrong. See Slack v. McDaniel, 529 U.S.

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473, 484-85 (2000). “A petitioner satisfies this standard by demonstrating that . . . jurists could

conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El

v. Cockrell, 537 U.S. 322, 327 (2003). In applying this standard, a district court may not conduct

a full merits review, but must limit its examination to a threshold inquiry into the underlying merit

of the petitioner’s claims. Id. at 336-37. When a federal court denies a habeas claim on procedural

grounds without addressing the claim’s merits, a certificate of appealability should 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. See Slack, 529 U.S. at 484-85.

Having considered the matter, the Court concludes that reasonable jurists would not find the

Court’s ruling debatable and that Petitioner has failed to make a substantial showing of the denial

of a constitutional right. A certificate of appealability is not warranted. The Court further 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 DISMISSES WITHOUT PREJUDICE the petition for writ of

habeas corpus and DENIES a certificate of appealability and leave to proceed on appeal in forma

pauperis.

IT IS SO ORDERED.

S/Lawrence P. Zatkoff 

LAWRENCE P. ZATKOFF

UNITED STATES DISTRICT JUDGE

Dated: July 20, 2009

CERTIFICATE OF SERVICE

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The undersigned certifies that a copy of this Order was served upon the attorneys of record

by electronic or U.S. mail on July 20, 2009.

S/Marie E. Verlinde 

Case Manager

(810) 984-3290

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