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 Mr. Brown's
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 the petition without prejudice.
is charged with possession of methamphetamine or amphetamine
which is a Class 1D felony in Nebraska. The prosecution is
taking place in Lancaster County, Nebraska in a case styled
State of Nebraska v. Jeremy J. Brown, CR 19 0000768
(District Court of Lancaster County, Nebraska). I take
judicial of those files and records. A motion to suppress has
been filed by his counsel, but no hearing has yet been held.
In short, the prosecution is ongoing and it is not atypical
in any way.
long and rambling complaint is difficult to understand. As
best I understand it, summarized and condensed, three claims
are made. Claim One asserts that the prosecutor is acting
outside his “Ministerial Function.” Claim Two
asserts that the Lancaster County Court abused its discretion
when it bound the case over to the District Court. Claim
Three asserts that Petitioner's appointed counsel is a
functionary acting for the prosecution and not Petitioner.
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.
Petitioner may challenge the propriety of any searches or
seizures and the sufficiency of the evidence against him in
state court prior to or at trial. The court further finds
that Petitioner's assertions do not constitute
“special” or “extraordinary”
circumstances that require intervention by the court.
See, e.g., Braden, supra
(speedy trial rights); Benson v. Superior Court Dept. of
Trial Court of Mass., 663 F.2d 355 (1st Cir. 1981)
(double jeopardy). Because it “plainly appears from the
petition . . . that petitioner is not entitled to relief,
” see Rule 4 of the Rules Governing Habeas Corpus
Cases, I will dismiss the petition without prejudice.
Certificate of Appealability
“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. The motion to amend exhibits,
Filing no. 3, is denied. No. certificate of appealability has
been or will be issued.
court will enter judgment ...