United States District Court, D. Nebraska
JAMES S. PRICE III, Petitioner,
LANCASTER COUNTY DEPARTMENT OF CORRECTIONS, and BRAD JOHNSON, Respondents.
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge.
matter is before the court on initial review under Rule 4 of
the Rules Governing Section 2254 Cases in the United
States District Courts of Petitioner James S. Price
III's Petition for a Writ of Habeas Corpus under 28
U.S.C. § 2241 filed on September 6, 2018. (Filing
set forth in his petition that he is “being detained by
the state of Nebraska for a conviction” in the District
Court of Lancaster County, Nebraska. (Filing No. 1;
Filing No. 8.) Price's state court records,
available to this court through the Nebraska state
courts' computerized record keeping system (JUSTICE),
show that Price was found guilty by a jury of aiding and
abetting robbery and aiding and abetting first degree assault
on June 21, 2018. Price's conviction resulted from a
second trial on these charges after the trial court declared
a mistrial over Price's objection in his first trial.
Petitioner was recently sentenced on January 30, 2019, to
twenty-five to forty years' imprisonment on each count to
run concurrently. I take judicial notice of the state court
records related to this case. See Stutzka v.
McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005) (court
may take judicial notice of judicial opinions and public
summarized and condensed for clarity, Price asserts his
rights to due process, a fair trial, and his rights under the
Double Jeopardy Clause were violated because the trial judge
erred in declaring a mistrial at Price's first jury trial
and the Nebraska appellate courts erred in failing to
consider Price's constitutional claims in his appeal from
the denial of his plea in bar.
2241 authorizes federal district courts to issue a writ of
habeas corpus to a state or federal prisoner who is in
custody in violation of the Constitution or laws or treaties
of the United States. 28 U.S.C. § 2241(c)(3). Section
2254 confers jurisdiction on district courts to
“entertain an application for a writ of habeas corpus
in behalf of a person in custody pursuant to the judgment of
a State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). It is a
well-established rule of statutory construction that when two
statutes cover the same situation, the more specific statute
takes precedence over the more general one. See Edmond v.
United States, 520 U.S. 651, 657 (1997). A number of
circuit courts have held that Section 2254 and its provisions
take precedence over Section 2241 because it is the more
specific statute. See Medberry v. Crosby, 351 F.3d
1049, 1060 (11th Cir. 2003); Cook v. New York State Div.
of Parole, 321 F.3d 274, 279, n.4 (2nd Cir. 2003);
Coady v. Vaughn, 251 F.3d 480, 484-85 (3rd Cir.
2001).case will not cause a later § 2254 habeas petition
to be barred by the restrictions against second or successive
filings. See28 U.S.C. § 2244.
it is apparent that Price is challenging his state-court
conviction and the resulting detention. The appropriate and
exclusive avenue for doing so is through a petition for writ
of habeas corpus brought pursuant to 28 U.S.C. § 2254.
Accordingly, the court will dismiss Price's § 2241
habeas petition without prejudice to reassertion of his
claims in a § 2254 petition.The dismissal of this Dated
this 1st day of February, 2019.
Price sought relief under 28 U.S.C. § 2241, he must
obtain a certificate of appealability if he wishes to appeal.
See28 U.S.C. § 2253; Fed. R. App. P. 22(b)(1); Rule 1(b)
and Rule 11(a) of the Rules Governing Section 2254 Cases in
the United States District Courts. 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 Price is not entitled to a certificate of
THEREFORE ORDERED that:
1. The petition for writ of habeas corpus (filing no. 1) is
denied and dismissed without prejudice. No. certificate of
appealability has been or will be issued.
2. Judgment will be entered by separate document.
3. The clerk of the court is directed to send to Petitioner a
form petition for a writ of habeas corpus under 28 U.S.C.
§ 2254 (form AO 241) and application to proceed without
prepayment of fees.
 Rule 1(b) of the Rules Governing
Section 2254 Cases in the United States District Courts
allows me to apply Rule 4 of those rules to a section 2241