United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the court on initial review of Petitioner
Gregory Bartunek's (“Bartunek”) Petition for
Writ of Habeas Corpus filed pursuant to 28 U.S.C. §
2241. (Filing No. 1.) For the reasons discussed
below, the court will dismiss Bartunek's petition without
is a federal pretrial detainee confined at the Douglas County
Department of Corrections awaiting trial in a pending
criminal case: USA v. Bartunek, Case No. 8:17-cr-28
(D. Neb.). On January 19, 2017, he was indicted on one count
of distribution of child pornography and one count of
possession of child pornography. (Filing No. 1, Case
No. 8:17-cr-28.) On February 23, 2017, Magistrate Judge Susan
M. Bazis ordered that Bartunek be released on bond. (Text
Minute Entry No. 17, Case No. 8:17-cr-28.) The
Government appealed the bail determination to Judge Robert F.
Rossiter, Jr., the presiding district court judge.
(Filing No. 24, Case No. 8:17-cr-28.) On February
28, 2017, Judge Rossiter ordered that Bartunek be detained
pending trial. (Filing No. 28, Case No. 8:17-cr-28.)
On March 30, 2017, Bartunek filed a Motion to Re-Open the
detention hearing. (Filing No. 38, Case No.
8:17-cr-28.) On April 11, 2017, Judge Rossiter denied
Bartunek's motion. (Text Minute Entry No. 45,
Case No. 8:17-cr-28.) On April 24, 2017, Bartunek appealed
the bail determination to the Eighth Circuit Court of
Appeals. (Filing No. 55, Case No. 8:17-cr-28.) On
May 24, 2017, the Eighth Circuit issued a judgment denying
Bartunek's motion for release pending trial. (Filing
No. 123, Case No. 8:17-cr-28.) The mandate issued on
June 14, 2017. (Filing No. 157, Case No.
and summarized, Bartunek's claims relate to his pending
criminal prosecution and to his pre-trial detention.
(SeeFiling No. 1 at CM/ECF pp. 1-2.) Bartunek seeks
immediate release from pretrial custody, that all charges
against him be dismissed with prejudice, and that the
property seized during the investigation be returned to him.
28 U.S.C. § 2241 establishes jurisdiction in the federal
courts to consider pretrial habeas corpus petitions, the
petitioner must first exhaust his available remedies.
McNeil v. Newton, No. 4:06C3305, 2007 WL 257668, at
*1 (D. Neb. Jan. 25, 2007) (citing Braden v. 30th
Judicial Circuit Court of Kentucky, 410 U.S. 484, 489-90
(1973) (federal habeas corpus does not lie, absent special
circumstances, to adjudicate the merits of an affirmative
defense to a state criminal charge prior to a judgment of
conviction)); see also Jones v. Perkins,
245 U.S. 390, 391 (1918) (“It is well settled that 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 trial.”).
With the exception of his pre-trial detention claims,
Bartunek's claims would be dispositive of his pending
federal criminal charges and must be exhausted at trial and
on appeal in the federal courts before habeas corpus relief
would be available. See Moore v. United States, 875
F.Supp. 620, 624 (D. Neb.1994), appeal dismissed, 54
F.3d 782 (8th Cir. 1995) (“Thus where habeas claims
raised by a pretrial detainee would be dispositive of the
pending federal criminal charges, principles of federal court
efficiency require that the petitioner exhaust those claims
by presenting them at trial and then on direct
appeal.”). Bartunek cannot challenge his pending
federal prosecution in his current habeas petition.
also cannot challenge the pre-trial detention order in his
habeas petition for two reasons. See e.g.,
Watson v. United States, No. 2:12-CV-12678, 2012 WL
4378582 (E.D. Mich. Sept. 25, 2012). First, “the
appropriate vehicle for [Bartunek] to challenge his pre-trial
detention is an expedited appeal procedure provided by the
Bail Reform Act, 18 U.S.C. § 3145(b), (c), not a habeas
corpus petition.” See id. (citing Whitmer
v. Levi, 276 Fed.Appx. 217, 219 (3rd Cir. 2008));
see also Fassler v. United States, 858 F.2d 1016,
1017-18 (5th Cir. 1988) (declining to hold that § 3145
provides the exclusive means to challenge pretrial detention
but finding “the terms of the Bail Reform Act and the
potential for abuse of the writ and for unnecessary
duplication of appeals, as demonstrated below, should
ordinarily provide strong incentive for defendants to employ
Section 3145 appeals.”).
the Eighth Circuit Court of Appeals denied Bartunek's
motion for release pending trial. “Law of the case
terminology is often employed to express the principle that
inferior tribunals are bound to honor the mandate of superior
courts within a single judicial system.” United
States v. Bartsh, 69 F.3d 864, 866 (8th Cir. 1995)
(quoting 18 Wright, Miller & Cooper, supra, § 4478
at 792). The law of the case doctrine prevents the
relitigation of this issue, see e.g.,
Watson, 2012 WL 4378582 at *3, or alternatively,
entertaining the issue again allows for duplicitous
litigation, see e.g., Muhammad v. Holder,
No. CA 1:12-25-PMD-SVH, 2012 WL 5457385, at *5 (D.S.C. Sept.
18, 2012), report and recommendation adopted sub nom.
Muhammad v. Cannon, No. CA 1:12-25-PMD-SVH, 2012 WL
5457374 (D.S.C. Nov. 8, 2012). Accordingly, Bartunek's
Petition for Writ of Habeas Corpus (Filing No. 1)
will be dismissed without prejudice. See Rule 4 of
the Rules Governing Habeas Corpus Cases Under Section
2254 (mandating that courts dismiss facially
THEREFORE ORDERED that:
case is dismissed without prejudice.
separate judgment will be entered.
clerk's office is directed to send a copy of this
Memorandum and Order to Judge ...