United States District Court, E.D. Arkansas, Western Division
Kristine G. Baker United States District Judge
Court has received Proposed Findings and Recommendations
submitted by United States Magistrate Judge Joe J. Volpe
(Dkt. No. 7). Petitioner Jerry McKee filed untimely
objections and supplemental objections, but the Court will
consider Mr. McKee's objections (Dkt. Nos. 9, 11). Mr.
McKee also filed several other documents with the Court (Dkt.
Nos. 8, 10, 13), as well as a motion for status update (Dkt.
No. 12). In its review, the Court has considered the entire
record. As an initial matter, the Court grants Mr.
McKee's motion for status update (Dkt. No. 12).
McKee, a pretrial detainee at Greene County Detention
Facility, brings this action under 28 U.S.C. § 2254
(Dkt. No. 1). In his petition, Mr. McKee requests that the
Court stay his state criminal case (Id., at 2, 7).
Mr. McKee also alleges that he has had three court-appointed
attorneys and that they have not “function[ed] as 
advocate[s]” for him (Id., at 3). According to
Mr. McKee, his Sixth Amendment rights are being violated
(Id., at 3-4). Mr. McKee further submits that his
bond amount is excessive and violates the Eighth Amendment
and the Fourteenth Amendment to the United States
Constitution (Id., at 4-5). Finally, Mr. McKee
alleges that he has “been refuseing [sic] to give them
DNA, ” but “they pulled blood thru a fake T.B.
test and cut part of my goatee off while I was trying to
sleep even though the inmate handbook says they cannot do
that but they did.” (Id., at 8).
Proposed Findings and Recommendations, Judge Volpe recommends
that Mr. McKee's action should be dismissed without
prejudice (Dkt. No. 7). Judge Volpe concluded that, because
he is incarcerated pending trial, Mr. McKee does not fit the
basic requirements for habeas relief under 28 U.S.C.
§ 2254 as he is not in custody pursuant to a state court
judgment (Id., at 2). Judge Volpe also concluded
that the Court should abstain from considering the instant
federal claims pursuant to Younger v. Harris, 401
U.S. 37 (1971) (Id., at 3-4). Finally, Judge Volpe
determined that Mr. McKee's petition should be dismissed
because Mr. McKee had not yet exhausted state court remedies
(Id., at 4). Judge Volpe noted that Mr. McKee could
return to federal court, if necessary, after the state
courts-including the Arkansas Supreme Court-have reviewed,
and decided the merits of, all of the claims that Mr. McKee
seeks to present in federal court (Id., at 5).
McKee's first set of objections, he largely reiterates
the claims from his original petition (Dkt. No. 9). He
asserts that he is being denied his Fifth, Sixth, Eighth, and
Fourteenth Amendment rights under the United States and
Arkansas Constitutions (Id., at 1). Mr. McKee
submits that he is being forced to
“self-incriminate” and that he is “not
being treated equally as others are” (Id.).
Mr. McKee represents that he is worried “about going to
court” and “getting convicted over an accident,
” as well as that his habeas case will be
dismissed (Id.). Mr. McKee complains of his
“$100, 000.00 cash-only bond” and asserts that it
is excessive (Dkt. Nos. 1, 9, 11). Mr. McKee submits that,
“once [he] get[s] convicted because of [his] Class Y
charge[, ] [he] can never get a bond again not even on
appeals” (Id., at 2).
McKee's second set of objections, he “object[s] to
anything that is going to let [the Court] dismiss [his case]
before [the Court] do[es] something good for [Mr.
McKee]” (Dkt. No. 11, at 1). Mr. McKee asserts that he
received a letter from “another federal court”
indicating that it was “putting [Mr. McKee's] 42
U.S.C. § 1983 on hold for two (2) years”
(Id.). According to Mr. McKee, that case related to
his “$100, 000.00 cash-only bond” (Id.).
Mr. McKee states that he needs a “bond that is
reasonably calculated for a poverty stricken person”
since he has lived on a monthly disability check for several
years (Id., at 2). Mr. McKee argues that, without
getting out on bond, he cannot obtain an attorney to defend
him (Id.). Mr. McKee again argues that his cash-only
bond in Arkansas state court violates the United States and
Arkansas Constitutions (Id., at 3).
addition, Mr. McKee repeats the prospective ineffective
assistance of counsel argument made in his petition
(Id., at 4-6; Dkt. No. 1, at 2-3). Mr. McKee argues
that a federal court should not abstain from a state case if
it detects bad faith, harassment, or other extraordinary
circumstances that would make abstention inappropriate
(Id., at 6). Mr. McKee further argues that his
double jeopardy rights will be violated because “after
this case is over” the Arkansas State Police and
Department of Human Services “plan on convicting [him]
for the same offense to put [him] in their sex
registry” (Id., at 7). Mr. McKee includes in
his second set of objections a list of facts pursuant to
Arkansas Rule of Criminal Procedure 9.2(c) and argues that
“no one has ever asked [him] any of these
questions” (Id., at 9-10).
notice filed on February 14, 2019, Mr. McKee acknowledges
that he is a pretrial detainee and suggests that “[his]
28 U.S.C. § 2251 habeas corpus might should be
listed as a 28 U.S.C. § 2241 because [he has] not been
convicted yet” (Dkt. No. 8). Mr. McKee asserts that he
does not want his case dismissed “because it has the
wrong statute number on it” and asks if his notice may
“[go] with [his] petition” (Id.).
Court has reviewed the Proposed Findings and Recommendations
and Mr. McKee's objections, and the Court has conducted a
de novo review of the record. The Court agrees with
Judge Volpe's Proposed Findings and Recommendations over
Mr. McKee's objections and agrees that dismissal without
prejudice of this action is appropriate for the reasons
stated by Judge Volpe. In the Court's view, the question
at this stage is whether recharacterizing Mr. McKee's
case as a 28 U.S.C. § 2241 case, as he requests in the
notice, would result in a different outcome for Mr.
McKee's case. For the following reasons, the Court
concludes that it would not result in a different outcome.
court defendant attempting to litigate the authority of his
pretrial detention may bring a habeas petition
pursuant to 28 U.S.C. § 2241. See Howell v.
Childrey, 2019 WL 1207867, at *1 (E.D. Mo. March 14,
2019) (citing Walck v. Edmondson, 472 F.3d 1227,
1235 (10th Cir. 2007); Dickerson v. State of
Louisiana, 816 F.2d 220, 224 (5th Cir. 1987)); see
also Moore v. United States, 875 F.Supp. 620, 622 (D.
Neb. 1994) (“Section 2241 has been recognized as a
potential source of habeas review for state pretrial
detainees.”) (citing, inter alia, Palmer
v. Clarke, 961 F.2d 771 (8th Cir. 1992); Atkins v.
Michigan, 644 F.2d 543 (6th Cir. 1981)) (emphasis in
original). The petitioner must be “in custody, ”
28 U.S.C. § 2241(c), and must have exhausted his
available state remedies. See Reed v. Fox, 2013 WL
3853207, at *2 (E.D. Ark. July 13, 2013); see also
Raymond v. Shue, 2018 WL 4926335, at *4 (W.D. Ark. Sept.
27, 2018) (citing Sacco v. Falke, 649 F.2d 634,
635-36 (8th Cir. 1981); Dickerson, 816 F.2d at 225)
(“Although . . . 28 U.S.C. § 2241 [does not]
include a statutory exhaustion requirement comparable to
that found in 28 U.S.C. § 2254(b), federal courts have
consistently recognized that the principles of comity and
federalism require exhaustion of all available state
remedies.”), adopted by Raymond v. Shue, 2018
WL 4924024 (W.D. Ark. Oct. 10, 2018).
to VINELink as of the date of this Order, Mr. McKee remains
in pretrial detention at the Greene County Detention
Center. The Court has also reviewed the docket in
Mr. McKee's pending state criminal case, No.
28CR-18-641. Nothing on the docket indicates that the
case has reached a disposition. Accordingly, Mr. McKee is
“in custody” as required under 28 U.S.C. §
respect to exhaustion of state court remedies, the Court
determines that Mr. McKee has not exhausted his claims in
state court. As to Mr. McKee's excessive bail claim, Mr.
McKee has provided to the Court no record evidence that he
has availed himself of state court review. See Trujillo
v. State, 483 S.W.3d 801 (Ark. 2016) (“The remedy
of the writ of certiorari is appropriate to review bail-bond
proceedings.”) (citing Foreman v. State, 875
S.W.2d 853 (Ark. 1994)). As to Mr. McKee's prospective
ineffective assistance of counsel claims, Mr. McKee's
case has not yet reached a disposition in state court, and
therefore, he has not exhausted his state court remedies as
to that claim.
Mr. McKee's claim that jail officials took blood samples
from Mr. McKee and cut his goatee, a writ of habeas
corpus “is an attack by a person in custody upon
the legality of that custody, and . . . the traditional
function of the writ is to secure release from illegal
custody.” Preiser v. Rodriguez, 411 U.S. 475,
484 (1973). A writ of habeas corpus is the
appropriate remedy when a claim “goes directly to the
constitutionality of physical confinement or the shortening
of its duration.” Id. at 489. Even if Mr.
McKee had exhausted his state court remedies with respect to
this claim, this claim relates to the conditions of his
confinement, not the constitutionality of his physical
confinement or the shortening of its duration. If Mr. McKee
wishes to pursue claims based on the conditions of his
confinement, he must do so in a separate action.
Mr. McKee had exhausted his state court remedies with respect
to his claims so that he could proceed in this Court under 28
U.S.C. § 2241, the Court agrees with Judge Volpe that
Younger abstention is warranted in this case. In
Younger, the Supreme Court held that federal courts
should abstain from interfering in ongoing ...