Phillips v. Court of Common Pleas, Hamilton County, 668 F.3d 804

Phillips appeals a district court denial of his pretrial habeas petition under 28 U.S.C. § 2241 after a mistrial and mid-trial indictment amendment in Ohio.
Phillips was charged with two counts of Unlawful Sexual Conduct with a Minor and one count of Gross Sexual Imposition involving D.B., with May 2006 dates alleged for the first incident and June 2006 for the second.
A computer forensics expert tied December 18, 2005, to topless photos and internet activity tied to the victim, contradicting the May 2006 charging dates.
At trial, the court refused to amend the indictment initially, concluding amendment would prejudice Phillips; later, the prosecutor moved to amend, and the court granted the amendment after finding prejudice and guiding a mistrial at Phillips’s request.
Phillips moved to dismiss the indictment on double jeopardy grounds, arguing that the mid-trial amendment was a prosecutor’s tactic to provoke a mistrial.
The district court treated the petition under § 2254, but the Sixth Circuit concluded § 2241 applied, and conducted de novo review of the state proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Proper habeas framework governing the petition	Phillips contends §2241 governs pretrial custody challenges.	State argues §2254 applies to state-court judgments; not applicable here.	§2241 appropriate; de novo review.
Whether mid-trial indictment amendment violated double jeopardy under Kennedy	Amendment intended to provoke mistrial; goad Phillips into requesting one.	Amendment to conform to evidence was necessary to avoid acquittal; not aimed at goading.	No showing of prosecutorial intent to goad; Kennedy narrow exception not met.
Exhaustion and review standard for §2241 petitions	Not explicitly required to exhaust under §2241 before federal review.	Exhaustion not required; district court properly addressed the claim.	Exhaustion considerations satisfied; de novo review applied.

Oregon v. Kennedy, 456 U.S. 667 (1982) (narrow exception to retrial when government goads defendant into mistrial)
Abney v. United States, 431 U.S. 651 (1977) (double jeopardy protection and retrial after defendant-initiated mistrial)
Harpster v. Ohio, 128 F.3d 322 (6th Cir.1997) (pretrial habeas review framework and standards)
Ross v. Petro, 515 F.3d 653 (6th Cir.2008) (pretrial habeas review standards in §2241 context)
United States v. White, 914 F.2d 747 (6th Cir.1990) (prosecutor's intent and mistrial considerations in Kennedy framework)
State v. Carey, 107 Ohio App. 149 (1958) (variance and proximity of dates in indictments; date need not be exact)
Justices of Boston Municipal Court v. Lydon, 466 U.S. 294 (1984) (in custody for §2241 purposes and related considerations)
United States v. El-Mezain, 664 F.3d 467 (5th Cir.2011) (Kennedy framework and prosecutorial conduct considerations)
United States v. Thomas, 728 F.2d 313 (6th Cir.1984) (limitations on prosecutorial strategy and amendment of charges)
Girts v. Yanai, 600 F.3d 576 (6th Cir.2010) (de novo review in §2241 pretrial context)