UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION
BADRA KABA, ) ) Petitioner, ) ) v. ) CV425-032 ) UNKNOWN, ) ) Respondent. )
ORDER AND REPORT AND RECOMMENDATION Pro se petitioner Badra Kaba filed an ambiguous request for habeas corpus relief in the Middle District of Georgia. See doc. 1. It was construed as a petition pursuant to 28 U.S.C. § 2241 and transferred to this Court. See generally doc. 4. Because of the deficiency of the Petition, the Court directed Kaba to refile it using the proper form. See generally doc. 8. He complied. Doc. 13 (Amended Petition). The Court, therefore, proceeds to screen the Amended Petition. See Rule 4, Rules Governing Section 2254 Cases (“If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition . . . .”).1 For the reasons explained below, it should be DISMISSED. Doc. 13. Kaba also filed
several motions, respectively, requesting appointed counsel, doc. 9, and seeking an order concerning the filing fee, doc. 10. Those motions are addressed below.
First, Kaba has requested court-appointed counsel. See doc. 9. There is no automatic constitutional right to counsel in habeas
proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Under 28 U.S.C. § 2254(h) and Rule 8(c) of the Rules Governing Section 2254 Cases (mandating appointment of counsel pursuant to 18 U.S.C. § 3006A
when an evidentiary hearing is warranted), the Court has authority to appoint counsel in habeas corpus proceedings. However, such requests are discretionary with the courts, and appointment of counsel is “a
privilege that is justified only by exceptional circumstances[.]” Dean v. Barber, 951 F.2d 1210, 1216 (11th Cir. 1992) (quoting Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987)). Moreover, it is well settled that
“[i]n a habeas corpus action in federal court[,] there is no requirement
1 The Rules Governing Section 2254 Cases also govern petitions pursuant to § 2241. See Rule 1(b), Rules Governing Section 2254 Cases. that counsel be appointed unless appointment of counsel is necessary to due process.” Norris v. Wainwright, 588 F.2d 130, 133 (5th Cir. 1979)
(cites omitted). The Court discerns no “exceptional circumstances” warranting appointment of counsel; particularly, as explained below, because Kaba’s Petition should be dismissed. Kaba’s request for
appointed counsel is, therefore, DENIED. Doc. 9. Kaba has also filed a Motion indicating that an unidentified
individual at “the front desk,” where he is incarcerated informed him that he or she would not issue a money order to pay the required filing fee without a court order. See doc. 10. There is no discernable basis for this
Court to direct any employee of what appears to be the Liberty County Jail to remit funds. However, failure to pay the required filing fee does not otherwise deprive this Court of jurisdiction. See, e.g., White v.
Lemma, 947 F.3d 1373, 1378-79 (11th Cir. 2020), receded from on other grounds by Wells v. Brown, 58 F.4th 1347 (11th Cir. 2023). Since, as explained below, Kaba’s Amended Petition should be dismissed, if the
District Judge adopts that recommendation, his request concerning an order requiring the jail to deduct funds from his account should be DISMISSED as moot. Doc. 10. Kaba’s Amended Petition makes it clear that he is in the custody of state authorities. See doc. 13 at 1. He alleges that some state proceeding
against him is pending in Bryan County Superior Court, id. at 2, 3, and that he is, alternatively, in the custody of Liberty or Bryan County, Georgia officials, id. at 1. His limited factual allegations indicate that he
was arrested in November 2018 and that he was subsequently “transferred to ICE.” Id. at 2. He was released in October 2020. Id. His
current detention commenced in October 2024 when he was arrested “for failure to appear on the same case.” Id. He requests that this Court “[h]ave ICE hold or detainer remove[d],” and “[h]ave Bryan County
release [him] . . . .” Id. at 7. As discussed below, his requests for relief against both the United States Immigration and Customs Enforcement (“ICE”) and Bryan County, Georgia implicate two distinct analyses.
However, it is clear that his § 2241 petition fails against either respondent. As an apparent pretrial detainee, a § 2241 petition is the proper
means for Kaba to seek release from custody. See, e.g., Hiteshaw v. Butterfield, 262 F. App’x 162, 164 (11th Cir. 2008) (“[A] pre-trial detainee . . . is not in custody pursuant to any state court judgment, and his habeas petition should . . . [be] treated as a § 2241 petition.”). The Eleventh Circuit has explained, however, that “a district court may not grant a
§ 2241 petition unless the petitioner has exhausted all available state remedies.” Johnson v. Florida, 32 F.4th 1092, 1095-96 (11th Cir. 2022) (internal quotation marks and citation omitted). The Court explained
that exhaustion has two essential elements: (1) “a federal claim must be fairly presented to the state courts,” and (2) “a prisoner must take his
claim to the state’s highest court, either on direct appeal or on collateral review.” Id. at 1096 (internal quotation marks and citations omitted). Kaba’s Petition indicates that, although he has filed motions in his
criminal case, he has not presented his complaints in any state proceeding beyond the trial court. See doc. 13 at 3-4, 7. The Petition is, therefore, clear that Kaba’s challenge to his state custody has not been
presented to “the state’s highest court,” i.e., the Supreme Court of Georgia. Moreover, under Georgia law, “[a]ny person restrained of his liberty
under any pretext whatsoever, except under sentence of a state court of record, may seek a writ of habeas corpus to inquire into the legality of the restraint.” O.C.G.A. § 9-14-1(a). Kaba must exhaust all available remedies provided under state law before he can seek relief in this Court. Cf. Daker v. Sapp, 2019 WL 3713713, at *6 (S.D. Ga. Aug. 6, 2019)
(“Federal habeas corpus should not be used as a pretrial motion forum for state prisoners.” (internal quotation marks and citation omitted)). This Court should also abstain from hearing his claims challenging
his state custody while those proceedings are pending pursuant to the Supreme Court’s opinion in Younger v. Harris, 401 U.S. 37 (1971). See
Johnson, 32 F.4th at 1099 (explaining that an unexhausted § 2241 petition “is barred for another independent reason: the application of the abstention doctrine under Younger v. Harris . . . .”).
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION
BADRA KABA, ) ) Petitioner, ) ) v. ) CV425-032 ) UNKNOWN, ) ) Respondent. )
ORDER AND REPORT AND RECOMMENDATION Pro se petitioner Badra Kaba filed an ambiguous request for habeas corpus relief in the Middle District of Georgia. See doc. 1. It was construed as a petition pursuant to 28 U.S.C. § 2241 and transferred to this Court. See generally doc. 4. Because of the deficiency of the Petition, the Court directed Kaba to refile it using the proper form. See generally doc. 8. He complied. Doc. 13 (Amended Petition). The Court, therefore, proceeds to screen the Amended Petition. See Rule 4, Rules Governing Section 2254 Cases (“If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition . . . .”).1 For the reasons explained below, it should be DISMISSED. Doc. 13. Kaba also filed
several motions, respectively, requesting appointed counsel, doc. 9, and seeking an order concerning the filing fee, doc. 10. Those motions are addressed below.
First, Kaba has requested court-appointed counsel. See doc. 9. There is no automatic constitutional right to counsel in habeas
proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Under 28 U.S.C. § 2254(h) and Rule 8(c) of the Rules Governing Section 2254 Cases (mandating appointment of counsel pursuant to 18 U.S.C. § 3006A
when an evidentiary hearing is warranted), the Court has authority to appoint counsel in habeas corpus proceedings. However, such requests are discretionary with the courts, and appointment of counsel is “a
privilege that is justified only by exceptional circumstances[.]” Dean v. Barber, 951 F.2d 1210, 1216 (11th Cir. 1992) (quoting Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987)). Moreover, it is well settled that
“[i]n a habeas corpus action in federal court[,] there is no requirement
1 The Rules Governing Section 2254 Cases also govern petitions pursuant to § 2241. See Rule 1(b), Rules Governing Section 2254 Cases. that counsel be appointed unless appointment of counsel is necessary to due process.” Norris v. Wainwright, 588 F.2d 130, 133 (5th Cir. 1979)
(cites omitted). The Court discerns no “exceptional circumstances” warranting appointment of counsel; particularly, as explained below, because Kaba’s Petition should be dismissed. Kaba’s request for
appointed counsel is, therefore, DENIED. Doc. 9. Kaba has also filed a Motion indicating that an unidentified
individual at “the front desk,” where he is incarcerated informed him that he or she would not issue a money order to pay the required filing fee without a court order. See doc. 10. There is no discernable basis for this
Court to direct any employee of what appears to be the Liberty County Jail to remit funds. However, failure to pay the required filing fee does not otherwise deprive this Court of jurisdiction. See, e.g., White v.
Lemma, 947 F.3d 1373, 1378-79 (11th Cir. 2020), receded from on other grounds by Wells v. Brown, 58 F.4th 1347 (11th Cir. 2023). Since, as explained below, Kaba’s Amended Petition should be dismissed, if the
District Judge adopts that recommendation, his request concerning an order requiring the jail to deduct funds from his account should be DISMISSED as moot. Doc. 10. Kaba’s Amended Petition makes it clear that he is in the custody of state authorities. See doc. 13 at 1. He alleges that some state proceeding
against him is pending in Bryan County Superior Court, id. at 2, 3, and that he is, alternatively, in the custody of Liberty or Bryan County, Georgia officials, id. at 1. His limited factual allegations indicate that he
was arrested in November 2018 and that he was subsequently “transferred to ICE.” Id. at 2. He was released in October 2020. Id. His
current detention commenced in October 2024 when he was arrested “for failure to appear on the same case.” Id. He requests that this Court “[h]ave ICE hold or detainer remove[d],” and “[h]ave Bryan County
release [him] . . . .” Id. at 7. As discussed below, his requests for relief against both the United States Immigration and Customs Enforcement (“ICE”) and Bryan County, Georgia implicate two distinct analyses.
However, it is clear that his § 2241 petition fails against either respondent. As an apparent pretrial detainee, a § 2241 petition is the proper
means for Kaba to seek release from custody. See, e.g., Hiteshaw v. Butterfield, 262 F. App’x 162, 164 (11th Cir. 2008) (“[A] pre-trial detainee . . . is not in custody pursuant to any state court judgment, and his habeas petition should . . . [be] treated as a § 2241 petition.”). The Eleventh Circuit has explained, however, that “a district court may not grant a
§ 2241 petition unless the petitioner has exhausted all available state remedies.” Johnson v. Florida, 32 F.4th 1092, 1095-96 (11th Cir. 2022) (internal quotation marks and citation omitted). The Court explained
that exhaustion has two essential elements: (1) “a federal claim must be fairly presented to the state courts,” and (2) “a prisoner must take his
claim to the state’s highest court, either on direct appeal or on collateral review.” Id. at 1096 (internal quotation marks and citations omitted). Kaba’s Petition indicates that, although he has filed motions in his
criminal case, he has not presented his complaints in any state proceeding beyond the trial court. See doc. 13 at 3-4, 7. The Petition is, therefore, clear that Kaba’s challenge to his state custody has not been
presented to “the state’s highest court,” i.e., the Supreme Court of Georgia. Moreover, under Georgia law, “[a]ny person restrained of his liberty
under any pretext whatsoever, except under sentence of a state court of record, may seek a writ of habeas corpus to inquire into the legality of the restraint.” O.C.G.A. § 9-14-1(a). Kaba must exhaust all available remedies provided under state law before he can seek relief in this Court. Cf. Daker v. Sapp, 2019 WL 3713713, at *6 (S.D. Ga. Aug. 6, 2019)
(“Federal habeas corpus should not be used as a pretrial motion forum for state prisoners.” (internal quotation marks and citation omitted)). This Court should also abstain from hearing his claims challenging
his state custody while those proceedings are pending pursuant to the Supreme Court’s opinion in Younger v. Harris, 401 U.S. 37 (1971). See
Johnson, 32 F.4th at 1099 (explaining that an unexhausted § 2241 petition “is barred for another independent reason: the application of the abstention doctrine under Younger v. Harris . . . .”). The Eleventh Circuit
has denied a Certificate of Appealability in a state pre-trial detainee’s habeas proceeding, concluding that “reasonable jurists would not debate” that dismissal of a § 2241 petition was proper, pursuant to Younger. See
McGowan v. Director of Miami-Dade Dept. of Corrs. & Rehabilitation, 2023 WL 7321634, at *1 (11th Cir. June 7, 2023); Lewis v. Broward Cnty. Sheriff Office, 2021 WL 5217718, at *1 (11th Cir. Nov. 9, 2021). The
Court explained that “when a petitioner seeks federal habeas relief prior to a pending state criminal trial the petitioner must satisfy the Younger abstention hurdles before the federal courts can grant such relief.’” Lewis, 2021 WL 5217718, at *1 (quoting Hughes v. Att’y Gen. of Fla., 377 F.3d 1258, 1262 (11th Cir. 2004)).
“The Supreme Court set out three exceptions to the [Younger] abstention doctrine, where: (1) there is evidence of state proceedings motivated by bad faith; (2) irreparable injury would occur; or (3) there is
no adequate, alternative state forum where the constitutional issues can be raised.” McGowan, 2023 WL 7321634, at * 1 (citing Younger, 401 U.S.
at 45, 53-54). The court concluded: “Application of the Younger abstention doctrine is, therefore, appropriate when the federal constitutional claims at issue can be raised in an ongoing state court
proceeding and the individual seeking relief has not established that he lacks an adequate opportunity to present those claims in the state proceeding.” Lewis, 2021 WL 5217718, at *1 (citing Younger, 401 U.S. at
49). Nothing in Kaba’s Petition suggests that any of the Younger exceptions apply. This Court also lacks jurisdiction over Kaba’s claim that the
detainer lodged by ICE is defective. As another court in this Circuit has explained, “[f]or a court to have jurisdiction over an immigration-related habeas claim, the petitioner must be in the ‘custody’ of the immigration agency.” Yong Cha Lee v. Bradley, 2019 WL 7597247, at *1 (N.D. Ala. Nov. 20, 2019) (collecting cases). The Eleventh Circuit has also made
explicitly clear that ICE’s “filing of [a] detainer, standing alone, did not cause him to come within the custody of,” the United States immigration agency. Louis v. Sec’y, Fla. Dept. of Corrs., 524 F. App’x 583, 584 (11th
Cir. 2013) (internal quotation marks, alterations, and citation omitted). The Court, therefore, lacks jurisdiction to consider any challenge to the
ICE detainer. The face of Kaba’s Petition shows, therefore, his claims challenging his state custody are unexhausted and that they appear to be barred by
Younger abstention and the Court lacks jurisdiction to consider his challenge to the ICE detainer. Accordingly, the Amended Petition should be DISMISSED. Doc. 13. His Motion for court-appointed counsel is
DENIED. Doc. 9. His request concerning his filing fee should be DISMISSED as moot. Doc. 10. This Report and Recommendation (R&R) is submitted to the district judge assigned to this action, pursuant to 28
U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 72.3. Within 14 days of service, any party may file written objections to this R&R with the Court and serve a copy on all parties. The document should be captioned “Objections to Magistrate Judge’s Report and Recommendations.”
After the objections period has ended, the Clerk shall submit this R&R together with any objections to the assigned district judge. The district judge will review the magistrate judge’s findings and
recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonette v. V.A. Leasing Corp., 648 F. App’x 787, 790 (11th Cir. 2016); Mitchell v. United States, 612 F. App’x 542, 545 (11th Cir. 2015).
Applying the Certificate of Appealability (COA) standards, which are set forth in Brown v. United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009), the Court discerns no COA-worthy issues at this stage
of the litigation, so no COA should issue. 28 U.S.C. § 2253(c)(1); see Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (approving sua sponte denial of COA before movant filed a notice of appeal). And, as
there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith. Thus, in forma pauperis status on appeal should likewise be DENIED. 28 U.S.C. § 1915(a)(8). SO ORDERED AND REPORTED AND RECOMMENDED, this 16th day of April, 2025.
CHRISTO a L. RAY UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA