Opinion
Case No. 3:09-cv-094.
March 10, 2009
REPORT AND RECOMMENDATIONS
This habeas corpus case, filed pro se by Petitioner Richard Wilson, is before the Court for initial review pursuant to Rule 4 of the Rules Governing Habeas Corpus Cases.
Petitioner was indicted by the Montgomery County Grand Jury on June 4, 2008, on two counts of non-support of his daughter. (Indictment in case 2008 CR 1931, available on the website of Montgomery County Clerk of Courts Gregory Brush). According to the Common Pleas Court's docket in the case, Petitioner was arrested on July 16, 2008. A not guilty plea was entered for him when he stood mute at arraignment on July 17, 2008. He was released on a conditional own recognizance bond the next day and was granted diversion from the criminal justice system on August 21, 2008. However, on January 9, 2009, Judge Huffman ordered the issuance of an absconder warrant which remains outstanding, again according to the docket.
It appears from these facts that Petitioner is sufficiently "in custody" to invoke the habeas corpus jurisdiction of the federal courts. A person on bond is sufficiently in custody to invoke federal habeas corpus jurisdiction. Hensley v. Municipal Court, 411 U.S. 345 (1973). This Court is the appropriate venue in which to bring such an action because the "custody" is here rather than in the United Kingdom, where Petitioner presently resides and where no district court has jurisdiction.
While the Court has jurisdiction in habeas corpus over Petitioner's claims, it should decline to exercise that jurisdiction in these circumstances. Rather, it should abstain under Younger v. Harris, 401 U.S. 37 (1971). As the Sixth Circuit has explained, Younger should be applied in a habeas corpus case where the petitioner seeks to stay the course of a state criminal proceeding:
Under the Younger doctrine of abstention, absent extraordinary circumstances, a federal court must decline to interfere with pending state civil or criminal judicial proceedings involving important state interests. Younger, 401 U.S. at 44. See New Orleans Public Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 367-68, 105 L. Ed. 2d 298, 109 S. Ct. 2506 (1989); Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 73 L. Ed. 2d 116, 102 S. Ct. 2515 (1982); Berger v. Cuyahoga County Bar Ass'n, 983 F.2d 718, 722-24 (6th Cir.), cert. denied, 124 L. Ed. 2d 639, 113 S. Ct. 2416 (1993); Sun Refining Mktg. Co. v. Brennan, 921 F.2d 635, 638-42 (6th Cir. 1990).
Three requirements must be met for Younger abstention to be appropriate: (1) there must be an on-going state judicial proceeding; (2) the proceeding must implicate important state interests; and (3) there must be an adequate opportunity in the state proceeding to raise constitutional challenges. Middlesex County Ethics Comm., 457 U.S. at 432; Sun Refining, 921 F.2d at 639. The proper time for determining the applicability of Younger abstention is when the party files its petition or complaint in the district court. Sun Refining, 921 F.2d at 639.Beeman v. Stafford, 1995 U.S. App. LEXIS 22541 *7-8 (6th Cir. 1995). All of those considerations apply here. There is an ongoing state court proceeding, to wit, a criminal case commenced by finding of probable cause by the grand jury. That proceeding implicates important state interests, to wit, a parent's obligation to provide support for his or her minor children. The Common Pleas Court as a court of general jurisdiction is fully able to adjudicate any of Petitioner's constitutional claims.
The Supreme Court recognized in Younger that there could be extraordinary circumstances permitting federal court interference with state court proceedings "(1) where irreparable injury is both "great and immediate," Younger, 401 U.S. at 46; (2) where the state law is "flagrantly and patently violative of express constitutional prohibitions," Id., at 53; (3) or where there is a showing of "bad faith, harassment, or any other unusual circumstance that would call for equitable relief," Id., at 54. None of these circumstances apply here. Nothing in the federal Constitution proscribes a State's enforcing support obligations by criminal law. The Petitioner faces no more immediate or irreparable harm than any state criminal defendant would face, and Petitioner has presented no evidence of bad faith on the County Prosecutor's part — indeed, he does not even deny that the support has not been paid.
In addition to relief from the pending criminal case, Petitioner seeks money damages from the County Prosecutor, including the costs of returning to the United States for any hearings in either the criminal case or his domestic relations case and a further order, presumably to the Attorney General, allowing him to enter the country to attend court hearings relating to his daughter. A habeas corpus court cannot award damages and this Court has no jurisdiction to control the discretion of the immigration authorities about entry into the country.
It is therefore respectfully recommended that the Petition herein be dismissed without prejudice under Younger v. Harris. Younger abstention contemplates dismissal with presentation of both federal and state claims to the state forum. Gibson v. Berryhill, 411 U.S. 564, 577 (1973); Watts v. Burkhart, 854 F.2d 839 (6th Cir. 1988).