Opinion
Case No. CV412-093
04-11-2012
KENNETH B. HAGGINS, Petitioner, v. AL ST. LAWRENCE, Respondent.
REPORT AND RECOMMENDATION
Currently being prosecuted in state court for, inter alia, felony murder, see attached docket print-out, Kenneth B. Haggins petitions this court for habeas relief under 28 U.S.C. § 2241. Doc. 1. He also moves for leave to proceed in forma pauperis (IFP) which, in light of his indigency, the Court GRANTS. Doc. 2. Haggins raises issues like the lack of probable cause to arrest him, the fact that no one believes his self-defense explanation, etcetera. He thus asks this Court to enjoin the state's prosecution. Id. at 9.
Haggins is a repeat customer. Haggins v. Young, CV411-209 doc. 39 at 1 (S.D.Ga. filed Feb. 28, 2012) (describing his 42 U.S.C. § 1983 case brought to "jam-up" the same state criminal prosecution), adopted, doc. 45 (S.D. Ga. Apr. 4, 2012).
Haggins' § 2241 petition must be dismissed for lack of exhaustion.It is not enough to have pursued pretrial state court remedies, as Haggins apparently seeks to demonstrate here. Doc. 1 at 12. Instead, he must pursue post-trial state court remedies, too. See supra n. 2. For that matter, the state court judge has scheduled a September 12, 2012 jury trial for him. See attach, at 1. If convicted, he may present all of the claims raised here on his direct and collateral appeals there. Garcon v. Palm Beach Cnty. Sheriffs Office, 291 F. App'x 225, 226 (11th Cir. 2008) (such claims must be "properly brought during [the] criminal case and subsequent direct appeal, should [the § 2241 petitioner] choose to file one."); Bure v. McNeil, 2010 WL 717582 at *2 (S.D. Fla. Feb. 26, 2010). Afterwards, he may timely petition this Court under 28 U.S.C. § 2254. Accordingly, his § 2241 petition should be DISMISSED without prejudice so that he may exhaust his state remedies.
While the § 2241 statute does not contain an exhaustion requirement resembling that found in 28 U.S.C. § 2254, courts have adopted such a requirement for § 2241 petitions. Thomas v. Crosby, 371 F.3d 782, 812 (11th Cir. 2004) ("Among the most fundamental common law requirements of § 2241 is that petitioners must first exhaust their state court remedies.") (Tjoflat, concurring); Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000) ("A habeas petitioner is generally required to exhaust state remedies whether his action is brought under § 2241 or § 2254."). "[T]he [common law exhaustion] requirement was codified in 28 U.S.C. §2254(b), but the requirement applies to all habeas corpus actions." Fain v. Duff, 488 F.2d 218, 223 (5th Cir. 1974); Moore v. DeYoung, 515 F.2d 437, 442 (3d Cir. 1975) (finding that under principles of federalism, exhaustion is required before pretrial writ can be issued); see Wilson v. Hickman, 85 F. Supp. 2d 1378, 1380 (N.D. Ga. 2000).
A § 2241 petitioner, then, "must exhaust his state remedies by petitioning the highest court in the state in which he is being held 'when such review is part of the ordinary appellate review procedure' in that jurisdiction." Jackson v. Walker, 206 F. App'x 967, 968 (11th Cir. 2006) (quoting Pope v. Rich, 358 F.3d 852, 853 (11th Cir. 2004)). And "[b]ecause ordinary appellate procedure in Georgia authorizes habeas review in the Georgia Supreme Court, a petitioner must avail himself of that procedure before we will deem all state remedies to be exhausted." Id.
SO REPORTED AND RECOMMENDED this 11th day of April, 2012.
______________________
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA