Shaw v. Kirn

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BRANDON QUENTIN SHAW, )
)
Petitioner, )
)
v. ) No. 4:25-cv-00836-MTS
)
MICHAEL KIRN, )
)
Respondent. )
MEMORANDUM AND ORDER
This matter is before the Court for review of Petitioner Brandon Quentin Shaw’s
Petition For a Writ Of Habeas Corpus Under 28 U.S.C. § 2241, Doc. [1], and Motion for leave
to Proceed in Forma Pauperis, Doc. [2]. The Court has reviewed Petitioner’s Motion and finds
it appropriate to grant it. The Court has also reviewed the Petition in accordance with Rule 4
of the Rules Governing Section 2254 Cases in the United States District Courts and finds it
must be dismissed.
I. Facts and Background
Petitioner is a federal pretrial detainee incarcerated in the Phelps County Jail. He has
been charged in this United States District Court with distribution of a controlled substance,
and with being an unlicensed dealer of firearms and a felon in possession of a firearm. See
United States v. Shaw, No. 4:24-cr-00058-JMD-JSD-1 (E.D. Mo. 2024). As of the date of this
order, Petitioner has filed pretrial motions that remain pending.
Petitioner filed the instant Petition pursuant to 28 U.S.C. § 2241 and named his
custodian, Phelps County Sheriff Michael Kirn, as Respondent. He identifies 11 separate
grounds for relief, but his actual claims are not easily discernible because he sets them out in
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long, repetitive, and unnecessarily detailed sentences. He also cites numerous provisions of
Title 18 of the United States Code and the Administrative Procedures Act, 5 U.S.C. § 702 et
seq. (also “APA”).
Notwithstanding these difficulties, Petitioner claims that his constitutional rights were
violated by federal law enforcement agents employed by the Bureau of Alcohol, Tobacco,
Firearms and Explosives (also “ATF”), and Assistant United States Attorney Jennifer L.
Szczucinski. Condensed and summarized, Petitioner’s grounds for relief are as follows:
(1) ATF Agent Riley O’Brien procured ATF Agent Kirsten Ellerbusch to
unlawfully intercept Petitioner’s oral communications to provide as evidence of
felony firearms violations;
(2) Agent Ellerbusch violated the APA and federal criminal law when she
induced Petitioner to manufacture and broker the sale of firearms from third
parties for her to buy between September 2023 and January 2024;
(3) Agent Ellerbusch conspired with Jillian Olsson to induce Petitioner to broker
the sale of controlled substances from third parties for Agent Ellerbusch to buy
between September 2023 and November 2023;
(4) Several named ATF agents induced Petitioner to manufacture and broker the
sale of firearms from third parties for Agent Ellerbusch to buy between
September 2023 and January 2024;
(5) Several named ATF agents induced Petitioner to broker the sale of controlled
substances from third parties for Agent Ellerbusch to buy;
(6) Several named ATF agents engaged in misleading conduct towards other
agents related to reporting whether Petitioner violated the conditions of his
supervised release, while Agent Ellerbusch induced Petitioner to manufacture
and broker the sale of firearms and controlled substances from third parties for
her to buy between September 2023 and January 2024;
(7) Several named ATF agents unlawfully “dissuaded [other agents] to not arrest
and/or seek an arrest warrant to arrest Petitioner [] for violating the conditions
of supervised release”* while Agent Ellerbusch violated federal racketeering
statutes by inducing Petitioner to manufacture and broker the sale of firearms
* Doc. [1] at 16.
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and controlled substances from third parties for her to buy between September
2023 and January 2024;
(8) Szczucinski conspired with ATF agents and knowingly presented false
evidence to establish the commerce element for the offense of felon in
possession of a firearm, and influenced other agents to lie to the Grand Jury;
(9) Szczucinski influenced another attorney to mislead Petitioner in order to
impede his access to certain evidence, thereby impeding Petitioner’s ability to
establish his defense of outrageous government conduct;
(10) Szczucinski engaged in wrongdoing that deprived Petitioner of the
effective assistance of counsel; and
(11) Szczucinski wrongfully influenced another attorney to induce Petitioner to
commit perjury.
Doc. [1] at 7-23. As relief, Petitioner asks this Court to “set aside and hold unlawful the Bureau
of Alcohol, Tobacco, Firearms and Explosives and the United States Attorneys Office actions,
findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, not in
accordance with law, contrary to constitutional rights, power, privilege, immunity, and without
observance of procedure required by law.” Id. at 38. After filing the instant Petition, Petitioner
filed two additional memoranda in support of his Petition. Docs. [6] and [7].
II. Discussion
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts
requires this Court to summarily dismiss a habeas petition if it plainly appears that the
petitioner is not entitled to relief. This Court may apply Rule 4 to the instant Petition. See
Rule 1(b) of the Rules Governing Section 2254 Cases in the United States District Courts
(stating that the “district court may apply any or all of these rules to a habeas corpus petition
not covered by Rule 1(a)”).
Pursuant to 28 U.S.C. § 2241(c)(3), a prisoner may file a petition for writ of habeas
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corpus if he “is in custody in violation of the Constitution or laws or treaties of the United
States.” But a criminal defendant cannot file a petition for writ of habeas corpus to raise
defenses to an ongoing federal criminal prosecution. Jones v. Perkins, 245 U.S. 390, 391
(1918) (citations omitted) (absent “exceptional circumstances in criminal cases the regular
judicial procedure should be followed and habeas corpus should not be granted in advance
of a trial”); see also Falcon v. U.S. Bureau of Prisons, 52 F.3d 137, 139 (7th Cir. 1995) (the
remedy provided by 28 U.S.C. § 2241 cannot be used to undermine, or interfere with, the
proceedings in an ongoing federal criminal case). Instead, federal pretrial detainees must
exhaust available remedies before seeking habeas relief. Hall v. Pratt, 97 F. App’x 246,
247 (10th Cir. 2004); accord Moore v. United States, 875 F. Supp. 620, 623 (D. Neb. 1994)
(federal pretrial detainee must first exhaust other available remedies before seeking relief
under section 2241). Therefore, if a federal pretrial detainee can still raise the relevant
issues in his criminal proceedings, he cannot seek relief under 28 U.S.C. § 2241. Miller v.
United States, 0:20-cv-00376-WMW-LIB, 2020 WL 3578553, at *1 (D. Minn. May 14,
2020).
In this case, granting Petitioner relief on any of his claims would undermine or
interfere with the proceedings in his ongoing federal criminal case. Further, Petitioner has
not demonstrated—and independent inquiry does not show—that he has fully exhausted the
remedies available in that case. Petitioner remains able to raise the relevant issues in his
ongoing criminal case and has indeed filed pretrial motions that have yet to be adjudicated.
Additionally, Petitioner has failed to show a basis for bypassing the normal procedure
for raising his claims. To the extent Petitioner attempts to do so by characterizing his claims
as arising under the APA and/or Title 18, his efforts are unavailing. The APA permits a
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“person suffering legal wrong because of agency action, or adversely affected or aggrieved
by agency action within the meaning of a relevant statute” to obtain “judicial review
thereof.” 5 U.S.C. § 702. It permits suits against “the United States, the agency by its
official title, or the appropriate officer.” 5 U.S.C. § 703. But here, Petitioner proceeds
against the Phelps County Sheriff, and he claims he was aggrieved by the federal law
enforcement officers and federal prosecutor investigating and prosecuting his criminal
conduct, not by an agency action. Additionally, Petitioner is unable to simultaneously
pursue a section 2241 petition and a civil complaint in the same action. See, e.g., Malcom
v. Starr, 0:20-cv-02503-MJD-LIB, 2021 WL 931213, at *2 (D. Minn. Mar. 11, 2021).
Finally, Title 18 is a criminal statute that does not provide a private right of action.
For the foregoing reasons, the Court finds that relief under section 2241 is unavailable
to Petitioner at this time. To determine otherwise would interfere with the trial judge’s
control over Petitioner’s criminal case, encourage “judge shopping,” and cause needless
duplication of judicial resources. The Court will therefore dismiss this action at this time,
without prejudice, and will deny as moot Petitioner’s motion for leave to file in excess of
the page limitation. The Court will not issue a certificate of appealability because Petitioner
has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C.
§ 2253(c); Slack v. McDaniel, 529 U.S. 473, 483–85 (2000).
Accordingly,
IT IS HEREBY ORDERED that Petitioner’s Motion for Leave to Proceed in Forma
Pauperis, Doc. [2], is GRANTED.
IT IS FURTHER ORDERED that Petitioner’s Petition For a Writ Of Habeas Corpus
Under 28 U.S.C. § 2241, Doc. [1], is DENIED and DISMISSED without prejudice. A
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separate order of dismissal will accompany this order.
IT IS FURTHER ORDERED that Petitioner’s Motion for leave to file in excess of
the page limitation, Doc. [4], is DENIED as moot.
Dated this 10th day of December 2025.
MATTHEW T. SCHELP
UNITED STATES DISTRICT JUDGE
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