United States District Court, D. Nebraska
JASON D. DEVERS, Petitioner,
DOUGLAS COUNTY DISTRICT COURT, Respondent.
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on initial review of Petitioner
Jason D. Devers' (“Devers”) 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 Devers' petition
is a state pretrial detainee confined at the Douglas County
Correctional Center in Omaha, Nebraska. Devers challenges his
“arrest and [the] failure to investigate” in the
Douglas County District Court case “18-667.”
(Filing No. 1 at CM/ECF p. 2.) Devers' state
case records, available to this court on-line, show that
Devers is charged with murder in the first degree, use of a
firearm to commit a felony, and possession of a weapon by a
prohibited person, and his case is set for jury trial in
March 2019. The court takes judicial notice of the state
court records related to this case in State v.
Devers, No. CR18-667, District Court of Douglas County,
Nebraska. See Stutzka v. McCarville, 420
F.3d 757, 760 n.2 (8th Cir. 2005) (court may take judicial
notice of judicial opinions and public records).
and summarized, Devers alleges violations of his due process
and Fourth Amendment rights based on the lack of
investigation and evidence to support his arrest and the
criminal charges against him. Devers seeks dismissal of all
his pending criminal charges.
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 by a state court.” Braden v.
30th Judicial Circuit Court of Kentucky, 410 U.S. 484,
489 (1973). “Despite the absence of an exhaustion
requirement in the statutory language of section 2241(c)(3),
a body of case law has developed holding that although
section 2241 establishes jurisdiction in the federal courts
to consider pre-trial habeas corpus petitions, federal courts
should abstain from the exercise of that jurisdiction if the
issues raised in the petition may be resolved either by trial
on the merits in the state court or by other state procedures
available to the petitioner.” Dickerson v. State of
La., 816 F.2d 220, 225 (5th Cir. 1987) (citing cases).
Relatedly, “[i]n Younger v. Harris, [401 U.S.
37, 43-44 (1971)], the Supreme Court advanced the position
that federal courts should refrain from interfering with
pending state judicial proceedings absent extraordinary
circumstances.” Harmon v. City of Kansas City,
Mo., 197 F.3d 321, 325 (8th Cir. 1999).
here is appropriate because Devers is involved with ongoing
state court criminal proceedings and his allegations do not
show that he exhausted his state court remedies. Devers may
challenge the propriety of any searches or seizures and the
sufficiency of the evidence against him in state court prior
to or at trial. The court further finds that Devers'
assertions do not constitute “special” or
“extraordinary” circumstances that require
intervention by the court. See, e.g.,
Braden, supra (speedy trial rights);
Benson v. Superior Court Dept. of Trial Court of
Mass., 663 F.2d 355 (1st Cir. 1981) (double jeopardy).
Because it “plainly appears from the petition . . .
that [Devers] is not entitled to relief, ” see
Rule 4 of the Rules Governing Habeas Corpus Cases,
the court will dismiss Devers' petition without
CERTIFICATE OF APPEALABILITY
“the detention complained of arises from process issued
by a state court, ” Devers must obtain a certificate of
appealability. See 28 U.S.C. § 2253; Fed. R.
App. P. 22(b)(1); see also Hoffler v. Bezio, 726
F.3d 144, 153 (2d Cir. 2013) (collecting cases of courts that
ruled a state prisoner who petitions for habeas relief under
28 U.S.C. § 2241 must obtain a certificate of
appealability). 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, 484-485 (2000). The court has
applied the appropriate standard and determined that Devers
is not entitled to a certificate of appealability.
THEREFORE ORDERED that:
1. The petition for writ of habeas corpus (filing no.
1) is dismissed without prejudice. No. certificate of
appealability has been or will be issued.
2. The court will enter judgment by separate ...