United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge
matter is before me on initial review of Petitioner Deandre
Welch's (“Welch”) Petition for Writ of Habeas
Corpus filed pursuant to 28 U.S.C. § 2241.For the reasons
discussed below, I will dismiss the petition without
is a state pretrial detainee confined by the Lancaster County
courts on various felony charges including possession of a
firearm by a prohibited person, this being the second or
subsequent such offense. I take judicial notice of the state
court records related to this case in State v.
Welch, No. CR18-1159, District Court of Lancaster
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
and summarized, Welch alleges violations of his
Constitutional rights. More particularly, Welch attacks the
judge, his lawyer, and the prosecutor for violating his due
process and assistance of counsel rights at the arraignment,
respecting a motion to quash, regarding a continuance, and
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 Petitioner is involved with
ongoing state court criminal proceedings and his allegations
do not show that he exhausted his state court remedies.
Specifically, I find that Petitioner's assertions do not
constitute “special” or
“extraordinary” circumstances that require
intervention by the court. See, e.g., Benson v.
Superior Court Dept. of Trial Court of Mass., 663 F.2d
355 (1st Cir. 1981) (the specific double jeopardy claim
alleged was not extraordinary given the lack of exhaustion).
Because it “plainly appears from the petition . . .
that [Welch] is not entitled to relief, ” see
Rule 4 of the Rules Governing Habeas Corpus Cases, I
will dismiss Welch's petition without prejudice.
“the detention complained of arises from process issued
by a state court, ” Petitioner 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).
I have applied the appropriate standard and determined that
Petitioner 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 document.
 I conduct this initial review of the
petition pursuant to 28 U.S.C. § 2243 and Rule 1(b) of
the Rules Governing Section 2254 Cases in the United
States District Courts which allows the court to apply