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, and
particularly since Petitioner attempts to take a second bite
of the apple, I will dismiss the petition without prejudice.
Wilson's second shot at attacking his pretrial
confinement. Wilson is a confined state pretrial detainee
facing prosecution in the Lancaster County District Court on
various felony charges including murder. I denied him relief
in Wilson v. Johnson, 8: 19CV85 (D. Neb., March 26,
2019) under section 2241 and the Court of Appeals refused to
grant him a certificate of appealability.
roughly the same time as when he filed the first federal
case, he filed a state habeas corpus petition attacking his
confinement in the state criminal case. That petition was
denied on October 1, 2019. The criminal case is set for
trial. I take judicial notice of the state court records
related to the criminal case styled State v. Wilson,
No. CR19-0000066, District Court of Lancaster County,
Nebraska (Judge John Colborn) and the state habeas case
styled Wilson v. Johnson, CI 19-0002354, District
Court of Lancaster County, Nebraska (Judge Lori A. Maret).
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). These records are publicly
available through the Nebraska Courts Case Search
and summarized, Wilson claims that the judge who denied his
state habeas corpus action acted unfairly and despite the
fact that Wilson had filed a grievance against her with the
state judicial disciplinary authorities. I note, however,
that the judge gave him a hearing on the disqualification
issue and continued the merits hearing, at Petitioner's
request, since he expressed a desire to hire his own counsel.
In the end, Petitioner did not hire counsel, and after the
continued merits hearing was held, Petitioner was denied
relief. I assume, without deciding, that section 2241 might
be read to extend to the denial of state habeas corpus relief
to a pretrial detainee where, as here, the Respondent is the
person having custody of Petitioner.
have said before: “[F]ederal 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 pretrial
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');">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.
In particular, he has not appealed the denial of his
state habeas action. Specifically, and furthermore, 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).
indicated earlier, I have previously denied Wilson relief.
This action is merely an attempt to avoid my earlier
decision. Therefore, because it “plainly appears from
the petition . . . that [Wilson] is not entitled to relief,
” see Rule 4 of the Rules Governing Habeas
Corpus Cases, I will dismiss the petition without
“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.
will enter judgment by separate document.