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's
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 prejudice.
is a state pretrial detainee confined by the Lancaster County
courts on various felony charges regarding alleged sexual
assaults. I take judicial notice of the state court records
related to this case in State v. Martinez, No.
CR19-511District 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 records).
and summarized (to the extent I can understand the claims),
Petitioner is seemingly alleging that the location of the
alleged offense was in Mexico and that there was a
Miranda violation. (I note that the records in state
court show that Petitioner was only recently restored to
competency to stand trial.)
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
[Martinez] is not entitled to relief, ” see
Rule 4 of the Rules Governing Habeas Corpus Cases, I
will dismiss the 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.
petition for writ of habeas corpus (filing no. 1) is
dismissed without prejudice. No. certificate of appealability
has been or will be issued.
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
Rule 4 of those rules to a section 2241 action.
 Petitioner did not list the state
court case number in his petition. I was able to determine
the case number from an earlier pleading that was returned to
Petitioner because it was written in Spanish. See ...