United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
matter is before the court on Petitioner Shawn Titus'
Petition for Writ of Habeas Corpus (filing no. 1)
brought pursuant to 28 U.S.C. § 2254. After initial
review under Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts, I will
dismiss the petition without prejudice.
alleges he pleaded no contest to one count of attempted first
degree sexual assault and was sentenced to 15 to 20
years' imprisonment on November 5, 2018, in the District
Court of Sarpy County, Nebraska, No. CR18-32. (Filing No.
1 at CM/ECF p. 1.) Petitioner's state case records,
available to this court online,  show that Petitioner filed a
direct appeal of his conviction and sentence on November 19,
2018, which is currently pending before the Nebraska state
appellate courts in No. A-18-1096. Petitioner filed his
habeas petition in this court on February 1, 2019, claiming
violations of his rights to effective assistance of counsel
and due process.
forth in 28 U.S.C. § 2254:
(b)(1) An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a State
court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the
courts of the State; or
(B) (i) there is an absence of available State corrective
(ii) circumstances exist that render such process ineffective
to protect the rights of the applicant. . . .
(c) An applicant shall not be deemed to have exhausted the
remedies available in the courts of the State, within the
meaning of this section, if he has the right under the law of
the State to raise, by any available procedure, the question
United States Supreme Court has explained the habeas
exhaustion requirement as follows:
Because the exhaustion doctrine is designed to give the state
courts a full and fair opportunity to resolve federal
constitutional claims before those claims are presented to
the federal courts . . . state prisoners must give the state
courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's
established appellate review process.
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). A state prisoner must therefore “fairly
present” the substance of each federal constitutional
claim to the state courts before seeking federal habeas
relief. Id. at 844. In Nebraska, “one complete
round” ordinarily means that each § 2254 claim
must have been presented in an appeal to the Nebraska Court
of Appeals, and then in a petition for further review to the
Nebraska Supreme Court if the Court of Appeals rules against
the petitioner. See Akins v. Kenney, 410
F.3d 451, 454-55 (8th Cir. 2005).
clear, exhaustion of available state postconviction relief is
a necessary prerequisite to seeking federal habeas relief
under 28 U.S.C. § 2254. As explained in Rose v.
Lundy, 455 U.S. 509, 520 (1982):
[O]ur interpretation of §§ 2254(b), (c) provides a
simple and clear instruction to potential litigants: before
you bring any claims to federal court, be sure that you first
have taken each one to state court. Just as pro se
petitioners have managed to use the federal habeas machinery,
so too ...