United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
Gregory Bartunek (“Bartunek”) has filed a
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254 (filing no. 1) and a motion to proceed
in forma pauperis (filing no. 2). The court's
records reflect that Bartunek recently paid the $5.00 filing
fee, so I will deny his motion to proceed in forma pauperis
as moot. Conducting an initial review under Rule 4 of the
Rules Governing Section 2254 Cases in the United States
District Courts, I conclude that the petition should be
dismissed without prejudice for the reasons discussed below.
the second time I have considered a request for habeas relief
by Bartunek, though the first time involved a habeas petition
filed under 28 U.S.C. § 2241, as opposed to 28 U.S.C.
§ 2254. See Bartunek v. Foxall, et al., No.
8:17CV303 (D. Neb.). As was true when Bartunek filed his
previous habeas action, Bartunek is a federal pre-trial
detainee awaiting trial in a pending criminal case: USA
v. Bartunek, No. 8:17CR28 (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, No. 8:17CR28.) On February 23, 2017,
Magistrate Judge Susan M. Bazis ordered that Bartunek be
released on bond. (Text Minute Entry No. 17, No. 8:17CR28.)
The Government appealed the bail determination to Judge
Robert F. Rossiter, Jr., the presiding district court judge.
(Filing No. 24, No. 8:17CR28.) On February 28, 2017,
Judge Rossiter ordered that Bartunek be detained pending
trial. (Filing No. 28, No. 8:17CR28.) On March 30,
2017, Bartunek filed a Motion to Re-Open the detention
hearing. (Filing No. 38, No. 8:17CR28.) On April 11,
2017, Judge Rossiter denied Bartunek's motion. (Text
Minute Entry No. 45, No. 8:17CR28.) On April 24, 2017,
Bartunek appealed the bail determination to the Eighth
Circuit Court of Appeals. (Filing No. 55, No.
8:17CR28.) On May 24, 2017, the Eighth Circuit issued a
judgment denying Bartunek's motion for release pending
trial. (Filing No. 123, No. 8:17CR28.) The mandate
issued on June 14, 2017. (Filing No. 157, No.
August 16, 2017, Bartunek filed a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241 in No. 8:17CV303
alleging claims relating to his present criminal prosecution
and pre-trial detention. (See Filing No. 1, No.
8:17CV303.) On September 21, 2017, I dismissed the petition
without prejudice upon initial review, concluding, inter
alia, that Bartunek could not use a habeas petition to
challenge the pre-trial detention order when the Bail Reform
Act, 18 U.S.C. § 3145(b), (c), provided an appropriate
remedy through an expedited appeal procedure and the Eighth
Circuit's denial of Bartunek's motion for pre-trial
release prevented relitigation of the issue pursuant to the
law of the case doctrine. (Filing No. 3, No.
on October 18, 2017, Bartunek filed a “Motion for
Review [and] Revocation of Detention Order and Re-Open
Detention Hearing” in his criminal case, which Judge
Rossiter denied on November 8, 2017. (Filing Nos.
212, 223, No. 8:17CR28.) Bartunek then
filed a motion to reconsider with respect to reopening the
detention hearing which was denied on November 14, 2017.
(Filing No. 228, Text Order No. 229, No. 8:17CR28.)
Bartunek appealed on November 22, 2017. (Filing No.
245, No. 8:17CR28.) On December 20, 2017, the Eighth
Circuit Court of Appeals summarily affirmed the denial of
Bartunek's Motion to Re-Open the detention hearing.
(Filing No. 272, No. 8:17CR28.) Bartunek's
petition for rehearing was denied by the Eighth Circuit on
February 15, 2018, and the mandate issued on February 22,
2018. (Filing Nos. 280, 282, No. 8:17CR28.)
alleges that, as a result of his “illegal”
detention, he was not able to properly prepare for his trial
scheduled for March 12, 2018, and so asked for counsel to be
appointed to represent him. (Filing No. 1 at CM/ECF pp.
13-14.) Judge Rossiter first appointed Michael Maloney
of the Federal Public Defender's Office to represent
Bartunek, but after Mr. Maloney sought and obtained a
continuance of trial to August 27, 2018, over Bartunek's
objections, Bartunek asked for and was granted a CJA Panel
attorney, Andrew Wilson, to represent him. (Id. at CM/ECF
pp. 14-16; Filing No. 1-1 at CM/ECF pp. 3-30;
see also Filing No. 309, No. 8:17CR28.)
Bartunek now complains that Mr. Wilson refuses to take any
action to secure Bartunek's release pending trial and
represents that he will not be prepared for trial in August
“without good cause” and additional delays will
only further violate Bartunek's constitutional rights.
(Filing No. 1 at CM/ECF pp. 16-17.) The court's
records show that Mr. Wilson moved for and obtained a
continuance of trial to October 29, 2018. (Filing No.
322, No. 8:17CR28.)
and summarized, Bartunek claims that his pre-trial detention
violates his constitutional rights to due process, equal
protection, reasonable bail, speedy trial, and effective
assistance of counsel. (See Filing No. 1 at
CM/ECF pp. 18-29.) Bartunek seeks immediate release from
pre-trial custody under minimum conditions of 18 U.S.C.
§ 3142. (Id. at CM/ECF p. 30.)
has filed his habeas petition pursuant to 28 U.S.C. §
2254 which affords relief to a petitioner “in custody
pursuant to the judgment of a State court.”
Bartunek's petition for habeas relief does not challenge
a state criminal judgment; that is, Bartunek does not claim
he is currently incarcerated on an unlawful state conviction
or sentence, or that his current custodial confinement was
imposed or enhanced due to a prior unlawful state conviction.
As such, his pending request for relief is not cognizable
under 28 U.S.C. § 2254. Maleng v. Cook, 490
U.S. 488, 492 (1989).
course, 28 U.S.C. § 2241(c) permits this court to
entertain an application for a writ of habeas corpus by a
person held in custody on pending criminal charges, but not
yet convicted or sentenced. McNeil v. Newton, 2007
WL 257668, *1 (D. Neb. 2007) (Kopf, J., presiding). See
also Braden v. 30th Judicial Circuit Court of Kentucky,
410 U.S. 484 (1973) (holding Alabama state inmate subject to
a Kentucky detainer could pursue habeas relief against
Kentucky under 28 U.S.C. § 2241 for denial of his right
to a speedy trial on the pending Kentucky charges);
Woodfin v. Joyce, 2007 WL 1192184, *1 (E.D. Mo.
2007) (“Because petitioner is not in custody pursuant
to a state court judgment, the only vehicle for challenging
his present confinement is 28 U.S.C. § 2241.”).
However, to the extent Bartunek's petition can be
construed as a petition for habeas relief under 28 U.S.C.
§ 2241, I will dismiss the petition without prejudice
for the same reasons I dismissed the § 2241 habeas
petition in No. 8:17CV303. (See Filing No. 3, No.
a petitioner cannot appeal an adverse ruling on his petition
for writ of habeas corpus under § 2254 unless he is
granted a certificate of appealability. 28 U.S.C. §
2253(c)(1); 28 U.S.C. § 2253(c)(2); Fed. R. App. P.
22(b)(1). The standards for certificates (1) where the
district court reaches the merits or (2) where the district
court rules on procedural grounds are set forth in Slack
v. McDaniel, 529 U.S. 473, 484-85 (2000). I have applied
the appropriate standard and determined that Petitioner is
not entitled to a certificate of appealability.
THEREFORE ORDERED that:
Petitioner's Motion for Leave to Proceed In Forma
Pauperis (fi ...