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 Foster
Watkins' (“Watkins”) Petition for Writ of
Habeas Corpus filed pursuant to 28 U.S.C. §
2241. (Filing No. 1.) For the reasons
discussed below, I will dismiss Watkins' petition without
time he filed his petition on January 3, 2019, Watkins was a
state pretrial detainee confined at the Lancaster County Jail
in Lincoln, Nebraska, awaiting a preliminary hearing on a
felony charge of forgery in the second degree in Lancaster
County Court Case Number CR18-4022. According to Watkins'
state court records, available to this court online, his case
was bound over to the Lancaster County District Court on
January 31, 2019, where it remains pending, and he was
released on bond on or about February 7, 2019. I take judicial
notice of the state county and district court records related
to this case in State v. Watkins, No. CR18-4022,
County Court of Lancaster County, Nebraska, and No. CR19-129,
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 records).
and summarized (to the extent I can understand the claims),
Watkins alleges the Lancaster County Court failed to file all
of his state habeas corpus pleadings and Judge Acton, the
county court judge who arraigned Watkins on November 20,
2018, is not a “fair judge” due to his alleged
“fraudulent service” in another case,
CR14-9536. (Filing No. 1 at CM/ECF p. 2.)
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 Watkins 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 Watkins' 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 [Watkins] 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, ” Watkins 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, 484-85 (2000). I have applied
the appropriate standard and determined that Watkins is not
entitled to a certificate of appealability.
THEREFORE ORDERED that:
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.
clerk of court is directed to send a copy of this Memorandum
and Order and the related Judgment to Petitioner at the
address on file in this case and to the following address:
4271 Wirt Street, Omaha, Nebraska 68111.
 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