UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION

JOSHUA J. LEPORE,

Petitioner,

v. Case No. 1:24-cv-110-AW/MJF

STATE OF FLORIDA,

Respondent. / REPORT AND RECOMMENDATION Petitioner is a State of Florida pretrial detainee proceeding pro se. He filed a second amended petition for a writ of habeas corpus under

. Doc. 9. Because Lepore has not exhausted remedies available to him under Florida law, the District Court should dismiss Lepore’s petition. I. BACKGROUND On June 24, 2024, Lepore commenced this action by filing a habeas petition pursuant to

. Doc. 1. On September 16, 2024, Lepore filed his second amended section 2241 petition. Doc. 9. Lepore is currently detained pre-trial on: (1) trafficking in methamphetamine; (2) two charges of introducing contraband into a county detention facility; (3) battery on an officer, firefighter, medical provider, or public employee;

(4) resisting officer with violence; (5) possession of firearm, ammunition, or electric weapon by convicted felon; (6) possession of short, barreled shotgun; and (7) possession or use of drug equipment. Doc. 9 at 1, 7; State

of Florida, No. 24-CF-60 (8th Jud. Cir.) (filed Mar. 6, 2024); State of Florida v. Lepore, No. 24-CF-56 (8th Jud. Cir.) (filed Mar. 1, 2024).1 Lepore asserts that his detention is unconstitutional because a Florida

judge required “excessive bail” and denied Lepore’s motion for a bond reduction. Doc. 9 at 7, 12. Lepore requests that the District Court impose “a more suitable/financially obtainable bail.”

.

II. DISCUSSION Section 2241 of Title 28 of the United States Code empowers district courts to grant a writ of habeas corpus.

(a). Although

state pretrial detainees may file a petition pursuant to section 2241, such claims are “extraordinary” and are rarely viable. Christian v. Wellington,

(6th Cir. 2014); Hughes v. Att’y Gen. of Fla.,

(11th Cir. 2004). Habeas-corpus proceedings under section

1 The undersigned takes judicial notice of the documents filed in the Eighth Judicial Circuit Court in and for Gilchrist County, Florida. 2241 are not intended to serve “as a substitute for the functions of the

trial court.” Henry v. Henkel,

(1914). Thus, “in the absence of exceptional circumstances in criminal cases the regular judicial procedure should be followed and habeas corpus should not be

granted in advance of a trial.” Jones v. Perkins,

, 391–92 (1918). A district court “may not grant a § 2241 petition ‘unless the

petitioner has exhausted all available state remedies.’” Johnson v. Florida,

, 1095–96 (11th Cir. 2022); Hughes,

n.4; Thomas v. Crosby,

(11th Cir. 2004) (Tjoflat,

J., specially concurring). Requiring state pretrial detainees to exhaust remedies available under state law minimizes “interference by federal courts in the normal functioning of state criminal processes.” Moore v.

DeYoung,

, 441–42 (3d Cir. 1975); see Johnson,

. To fully exhaust available remedies, a state pre-trial detainee must: (1) fairly present his federal claim to the state courts; and (2)

prosecute his claim “to the state’s highest court, either on direct appeal or on collateral review.” Johnson,

. A district court may dismiss a habeas petition when it is facially apparent that the petitioner failed to exhaust his state remedies. See Jones v. Bock,

(2007); Okpala v. Drew,

(11th Cir. 2007). Under Florida law, a pre-trial detainee can file in the appropriate Court of Appeal a petition for writ of habeas corpus seeking relief from

pretrial detention and challenging the bond determination of the trial court. Byrd v. Mascara,

(Fla. 4th DCA 2016) (“The trial court’s determination of bail is presumed correct, but an appellate

court will grant” habeas “relief where the petitioner demonstrates that the bail amount is unreasonable under the circumstances.”); Mehaffie v. Rutherford,

(Fla. 1st DCA 2014). Here, Lepore states

that he challenged the trial judge’s bail determination by filing—through counsel—a motion to reduce bond with the trial court. Doc. 9 at 6; State of Florida, No. 24-CF-60, Motion to Reduce Bond, Dkt. No. 38 (8th Jud.

Cir.) (filed on May 22, 2024); State of Florida v. Lepore, No. 24-CF-56, Motion to Reduce Bond, Dkt. No. 47 (8th Jud. Cir.) (filed on May 22, 2024). On May 29, 2024—less than one month before Lepore filed the

instant petition—the Florida trial court denied Lepore’s motion for bond reduction. Lepore acknowledges that he has not challenged the trial court’s determination of bail or it’s denial of the motion for bond reduction in the relevant District Court of Appeal or Florida Supreme Court. Id. at

3. In other words, he has not raised his claims—either through a direct appeal or collaterally—to the relevant Florida District Courts of Appeal or the Florida Supreme Court. See Johnson,

(to properly

exhaust the claim must prosecute his claim “to the state’s highest court, either on direct appeal or on collateral review.”). Accordingly, Lepore has not pursued—much less exhausted—the remedies afforded to him by

Florida law. Because Lepore failed to exhaust his state remedies before filing his petition for writ of habeas corpus, the District Court should dismiss

Lepore’s section 2241 petition. III. CONCLUSION

Because Lepore has not exhausted his available state remedies, the undersigned respectfully RECOMMENDS that the District Court: 1. DISMISS without prejudice Lepore’s second amended petition for a writ of habeas corpus under

. Doc. 9.

2. Order the clerk of the court to close this case file. At Pensacola, Florida, this 23rd day of September, 2024. /s/ Michael J. Frank Michael J. Frank United States Magistrate Judge

NOTICE TO THE PARTIES

The District Court referred this case to the undersigned to address preliminary matters and to make recommendations regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also

(b)(1)(B), (C); Fed. R. Civ. P. 72(b). Objections to these proposed findings and recommendations must be filed within fourteen (14) days of the date of the report and recommendation. Any different deadline that may appear on the electronic docket is for the court’s internal use only and does not control. An objecting party must serve a copy of its objections upon all other parties. A party who fails to object to the magistrate judge’s findings or recommendations contained in a report and recommendation waives the right to challenge on appeal the district court’s order based on unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1;

. If the parties dispute the accuracy of any facts taken from judicially-noticed documents, or if they otherwise wish to be heard on the propriety of the court taking judicial notice of those facts, they must raise this issue in an objection to this report and recommendation.