Opinion
Case No.: 1:06 CV 2733.
January 30, 2007
ORDER
On November 13, 2006, Petitioner Daniel M. Roth, Pro Se ("Petitioner" or "Roth") filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of the conditions of his bond, pending trial in the Common Pleas Court of Cuyahoga County under an Indictment, charging two counts of attempted gross sexual imposition. (ECF No. 1.) The case was referred to Magistrate Judge David S. Perelman for preparation of a Report and Recommendation on the Motion to Dismiss Petitioner's Writ, filed by Respondents Erikka McGuire, et al. (ECF No. 11.) On January 3, 2007, the Magistrate Judge issued his Report and Recommendation, recommending that the Motion to Dismiss be granted and that Roth's Petition be dismissed. (ECF No. 13.) On January 11, 2007, Petitioner filed his Objections to the Report and Recommendation. (ECF No. 14.) Petitioner objects to the Magistrate Judge's conclusions that this court is without jurisdiction, that he is not "in custody," and that he has failed to exhaust his remedies. ( Id.)
I. BACKGROUND
On or about June 22, 2006, Petitioner was indicted for two counts of Attempted Gross Sexual Imposition. ( See Copy of Indictment, Resp'ts' Ex. A, ECF No. 11-2.) At Petitioner's arraignment on August 4, 2006, the Common Pleas Court of Cuyahoga County established Petitioner's bond at $2,500.00. ( See Court Journal Entry, Resp'ts' Ex. B, ECF No. 11-3.) Petitioner posted bond and was released from incarceration on that date.Thereafter, on August 16, 2006, the Honorable Nancy Russo ("Judge Russo") was informed that Petitioner had tested positive for illegal drugs. ( See Court Journal Entry, Resp'ts' Ex. C, ECF No. 11-4.) A hearing was held before Judge Russo concerning bail on August 21, 2006. Petitioner's original bond was forfeited and a new bail was set in the amount of $25,000.00. Petitioner posted this bond on August 31, 2006.
On September 14, 2006, Petitioner failed to appear for a court-ordered psychiatric exam. The court, therefore, ordered forfeiture of the second bond. ( See Court Journal Entry, Resp'ts' Ex. D, ECF No. 11-5.) Petitioner was arrested on the court's capias and was incarcerated until October 17, 2006, when the Petitioner again requested bail. A new bail was set in the amount of $30,000, with additional conditions, including the forfeiture of Petitioner's passport and the use of an electronic home detention device confining Petitioner to his home. ( See Court Journal Entry, Resp'ts' Ex. E, ECF No. 11-6.) Petitioner posted bail on October 19, 2006, and was released from jail.
On November 13, 2006, Roth filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this court, challenging the constitutionality of the conditions of his bond, pending trial. (ECF No. 1.)
On November 29, 2006, Judge Russo removed the use of the electronic home detention device as a condition of Petitioner's bail, and granted Roth travel privileges for Lake and Cuyahoga counties. ( See Court Journal Entry, Resp'ts' Ex. F, ECF No. 11-7.) Judge Russo also stated that Roth could petition the court for travel privileges in other counties. ( Id.)
II. LAW AND ANALYSIS A. Jurisdiction
1. The availability of jurisdiction under § 2241(c)(3), rather than § 2254
Petitioner challenges the constitutionality of the conditions of his bond, pending trial, under 28 U.S.C. § 2254. The Magistrate Judge concluded that since Roth is a pretrial detainee, this court is without jurisdiction to hear Roth's Petition because he is not "in custody pursuant to the judgment of a State court," which is a requirement for jurisdiction under § 2254. See Prince v. Bailey, 464 F.2d 544 (1972). In his Objections, Petitioner now argues that this court has jurisdiction under § 2241, as the court found in the case cited by the Magistrate Judge, Stow v. Murashige, 389 F.3d 880 (9th Cir. 2004). ( See Objections, ECF No. 14.)
28 U.S.C. § 2241 states, in part, as follows:
(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. The order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had.
. . . .
(c) The writ of habeas corpus shall not extend to a prisoner unless —
(1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or
(2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or
(3) He is in custody in violation of the Constitution or laws or treaties of the United States. . . .
Stow involved a pretrial detainee who sought habeas relief, raising a double jeopardy challenge, after the Hawaii Supreme Court reversed his conviction for attempted first degree murder for insufficient evidence and remanded for retrial two counts for attempted second degree murder. Stow, 389 F.3d at 882. The state trial court jury had found petitioner guilty on the charge of attempted first degree murder but wrote "Not guilty" on the verdict forms next to the attempted second-degree murder counts. Id. The Ninth Circuit determined as an initial matter that jurisdiction was proper under U.S.C. § 2241, rather than § 2254, because the petitioner "was not in custody pursuant to the judgment of a State court at the time he filed his petition, the threshold requirement for § 2254. . . ." Id. at 885. As the court in Stow explained,
Section 2254 confers jurisdiction on a district court to issue "a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court . . . on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (emphasis added). "By contrast, the general grant of habeas authority in § 2241 is available for challenges by a state prisoner who is not in custody pursuant to a state court judgment — for example, a defendant in pre-trial detention or awaiting extradition." White v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004). We have held that "in these situations, not covered by the limitations in § 2254, the general grant of habeas authority provided by the Constitution and § 2241 will pro-vide [sic] jurisdiction for state prisoners' habeas claims." Id. (citations omitted).Stow, 389 F.3d at 886.
Under Stow and pursuant to § 2241(c)(3), this court has the power to issue a writ of habeas corpus for a prisoner who "is in custody in violation of the Constitution or laws or treaties of the United States. . . ." 28 U.S.C. § 2241(c)(3).
2. The "in custody" requirement
The Magistrate Judge also noted that the "in custody" requirement was an "obstacle" for Petitioner, even if he were still subject to electronic home detention, citing Johnson v. Hoy, 227 U. S. 245, 247-48 (1913). Petitioner objects to the Magistrate Judge's conclusion and quotes Hensley v. Municipal Court, 411 U.S. 345, 349 (1973), for the position that "a person released on bail or on his own recognizance may be `in custody' within the meaning of the statute." For the following reasons, Petitioner's objection to the Magistrate Judge's conclusion that he cannot surmount the "in custody" obstacle is also well-taken. ( See R R, 2.)In Hensley, the Supreme Court reversed the Ninth Circuit which had found that the petitioner was not in custody for purposes of the habeas statute and thus denied habeas relief. The petitioner had been convicted in state court and sentenced to serve one year in jail and pay a fine. The petitioner was granted a stay of his sentence and released on his own recognizance, however, he was still subject to certain conditions, such as an obligation to appear at all times and places as ordered by any court or magistrate of competent jurisdiction. The Supreme Court found that the petitioner was "in custody" within the meaning of the habeas statute because the petitioner was "subject to restraints `not shared by the public generally,'" and because "[h]is freedom of movement rest[ed] in the hands of state judicial officers." Id. at 351 (quoting Jones v. Cunningham, 371 U.S. 236, 240 (1963). The Court further observed that for Hensley, "[d]isobedience is itself a criminal offense." Id.
In the instant case, Roth is subject to constraints tantamount to those borne by Hensley. Like Hensley, Roth is "subject to restraints not shared by the public generally." Hensley, 411 U.S. at 351 (citation omitted.) Roth "cannot come and go as he pleases." Id. Moreover, should Roth disobey the conditions of his bail, he could be incarcerated, as he was previously for failing a drug test and for failure to keep a court ordered psychiatric appointment. Additionally, as Wright Miller observe in Jurisdiction and Related Matter § 4262, "[i]f bail is a sufficient restraint to amount to `custody' for a for a convicted defendant, it should equally amount to custody for one who is awaiting trial, and the post-1973 cases so hold." 17A CHARLES ALAN WRIGHT, ARTHUR R. MILLER EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION AND RELATED MATTER § 4261 (2D 1988) (referring to Hensley). Accordingly, this court finds that Roth is "in custody" within the meaning of the habeas statute.
3. The exhaustion requirement
The requirement of exhaustion of remedies applies to habeas petitions under § 2241(c)(3). See Hensley, 411 U.S. at 353 ("Where a state defendant is released on bail or on his own recognizance pending trial or pending appeal, he must still contend with the requirements of the exhaustion doctrine if he seeks habeas corpus relief in the federal courts.) As WRIGHT MILLER explain,
Technically the statutory requirement that state remedies be exhausted applies only to an application for the writ "in behalf of a person in custody pursuant to the judgment of a State court." But the exhaustion requirement had been imposed by the courts as a matter of comity long before it was codified in 1948 and the present learning appears to be that while federal courts have jurisdiction to hear habeas corpus applications by those in state custody who have not been tried even though they have not yet exhausted their state remedies, this jurisdiction should not be exercised unless extraordinary circumstances are present.
17A CHARLES ALAN WRIGHT, ARTHUR R. MILLER EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION AND RELATED MATTER § 4262 (2D 1988) (footnotes omitted); see also United States ex rel. Scranton v. New York, 532 F.2d 292, 294 (2d Cir. 1976) ("While 28 U.S.C., Section 2241 does not by its own terms require the exhaustion of state remedies as a prerequisite to the grant of federal habeas relief, decisional law has superimposed such a requirement in order to accommodate principles of federalism." (citations omitted)).
WRIGHT MILLER conclude,
In sum, a person who is free on bail pending trial and who has exhausted his state remedies is entitled to a decision on the merits of his petition. Though the court has jurisdiction of a petition by a defendant in this position who has not exhausted state remedies, the jurisdiction will not be exercised unless the court finds that there are extraordinary circumstances that justify not following the usual rule requiring exhaustion.
17A CHARLES ALAN WRIGHT, ARTHUR R. MILLER EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION AND RELATED MATTER § 4262 (2D 1988) (footnotes omitted).
The Magistrate Judge concluded that Respondents' Motion to Dismiss should be granted because Petitioner failed to exhaust his remedies. (R R 3.) In his Objections, Petitioner argues that he has exhausted his remedies as "there is no appeal available under Ohio law from the bond order imposed by the trial court." (Objections 2.) However, there is a state remedy available to Roth which he has not chosen to pursue, State habeas corpus. The Ohio legislature has provided that "[w]hoever is unlawfully restrained of his liberty, or entitled to the custody of another, of which custody such person is unlawfully deprived, may prosecute a writ of habeas corpus. . . ." and that "[t]he writ of habeas corpus may be granted by the supreme court, court of appeals, court of common pleas, probate court, or by a judge of any such court." O.R.C. §§ 2725.01, 2725.02.
Moreover, the Ohio Supreme Court has clearly stated that, "[h]abeas corpus is the proper remedy to raise the claim of excessive bail in pretrial-release cases." Chari v. Vore, 91 Ohio St.3d 323, 325 (2001). In Chari, the defendant/appellee filed a petition for a writ of habeas corpus in the Court of Appeals for Montgomery County against the sheriff/appellant, claiming the his bond provisions were excessive. Chari, 91 Ohio St.3d at 324. The appellate court determined that the defendant/appellee's bond was excessive, granted the writ, and denied the sheriff's motion to dismiss. Id. at 325. The sheriff appealed to the Ohio Supreme Court, which observed that "R.C. Chapter 2725 prescribes a basic, summary procedure for bringing a habeas corpus action" before it reversed the judgment of the court of appeals and dismissed the defendant/appellee's claim for failure to meet his burden of proof. Id. at 327.
As illustrated by Chari, this court finds that Roth could get relief in state court for the issue that he raises in his habeas petition before this court. The rationale behind the federal writ of habeas corpus is that an individual's right to be free from unlawful detention is so valuable that federal claims already rejected by the state courts should receive a second look by a federal court. In the instant case, Petitioner has not filed for a writ of habeas corpus in any court in the State of Ohio, thus, no state court has had the opportunity to review Petitioner's claim that the terms of his bail are unconstitutional. As such, this court finds that Petitioner has failed to exhaust his state remedies.
See Larry W. Yackle, Explaining Habeas Corpus, 60 N.Y.U. L. REV. 991, 998-999 (1985).
Finally, Petitioner does not argue that there are extraordinary circumstances that justify disposal of the exhaustion requirement, nor does this court find that there are any. Petitioner is not incarcerated, is free to move around Lake and Cuyahoga counties, and could petition the state trial court for travel privileges in other counties. ( See Court Journal Entry, Resp'ts' Ex. F, ECF No. 11-7.) Moreover, there is nothing in the record that suggests that the state courts of Ohio are unwilling to hear or take action on Petitioner's claim. Consequently, there is no need to invoke "the Great Writ" at this time as no extraordinary circumstances presently exist. Therefore, this court declines jurisdiction to hear Petitioner's claim.
In conclusion, this court finds that although there is jurisdiction to hear Roth's habeas Petition under 28 U.S.C. § 2241(c)(3) challenging bond conditions, this court lacks jurisdiction because Petitioner has failed to exhaust his remedies which, as a matter of comity, he is required to do. Further, he has neglected to present any "extraordinary circumstances" which might support federal jurisdiction. Consequently, Respondent's Motion to Dismiss is granted.
B. The requirement of a constitutional violation under § 2241(c)(3)
Even if Petitioner had exhausted his claim in the Ohio state courts, his federal habeas petition must still be dismissed. Section 2241(c)(3) requires that a habeas petitioner be in custody "in violation of the Constitution or laws or treaties of the United States. . . ." 28 U.S.C. § 2241(c)(3). Unlike the fact situations involved in the majority of the case law applying § 2241 to a pretrial detainee out on bail seeking habeas relief, Petitioner in the instant case does not challenge the constitutionality of his Indictment, nor does he seek to raise defenses to his Indictment or argue that his right to a speedy trial has been violated. See e.g., United States ex rel. Scranton, 532 F.2d 292; Veach v. Smith, 42 F. Supp. 161 (1941); Simmons v. Anderson, 2006 U.S. Dist. LEXIS 24983 (W.D. Tenn. 2006). In the instant case, Petitioner is challenging the constitutionality of his bail itself. Petitioner cites no authority for the proposition that bail with travel restrictions to certain counties, with the opportunity to apply to the judge to go to other counties, or even that the electronic home detention to which he was initially imposed, is a violation of the Constitution.
Although the Magistrate Judge suggested that "the removal of the condition of home confinement . . . negate[d] the challenge presented" (R R 2), this court notes that the exception to the mootness rule for matters "capable of repetition, yet evading review" might likely save Petitioner's claim from dismissal on the grounds of mootness, as there is nothing prohibiting the implementation of electronic home detention for Petitioner in this matter, in the future. See Leonard v. Hammond, 804 F.2d 838, 842-43 (4th Cir. 1986) (Holding that because the petitioners were in jail when they filed their habeas petitions, their subsequent release had no effect on jurisdiction and that "although free now," plaintiffs had the substantial risk of again being incarcerated if they failed to make child support payments and therefore, petitioners' claims were not moot. (citing Southern Pacific Terminal v. ICC, 219 U.S. 498 (1911); Weinstein v. Bradford, 423 U.S. 147, 149 (1975); and Murphy v. Hunt, 455 U.S. 478 (1982))). This court declines to elaborate on this issue as it did not decide Respondents' Motion to Dismiss on mootness grounds.
III. CONCLUSION
For the foregoing reasons, Respondents' Motion to Dismiss Petitioner's Writ of Habeas Corpus (ECF No. 11) is granted.IT IS SO ORDERED.