United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
matter is before the court on initial review under Rule 4 of
the Rules Governing Section 2254 Cases in the United
States District Courts of Petitioner Graylin Gray's
(“Petitioner” or “Gray”) Petition for
a Writ of Habeas Corpus under 28 U.S.C. § 2241 filed on
November 7, 2019. (Filing No. 1.)
alleged in his petition that he is “[a] pretrial
detainee . . . in state custody ‘pursuant to' a
sentence, not pursuant to ‘the' (e.g. one)
judgment, which includes both the conviction and
sentence.” (Filing No. 1 at CM/ECF p. 1.)
Gray's petition and the attached state court records
establish that he was sentenced on March 7, 2008, in the
Lancaster County District Court of Nebraska No. CR06-511 to a
total sentence of 20 to 40 years' imprisonment with a
habitual criminal sentence enhancement. (Id. at
CM/ECF pp. 8, 16-17, & 109.) Gray's sentence was
entered after he was found guilty by a jury of criminal
possession of financial transaction devices and unlawful
circulation of financial transaction devices in the first
degree on December 6, 2007. (Id. at CM/ECF p.
construed, the only claim raised by Gray in his habeas
petition is that his sentence is void and violates due
process because no judgment of conviction, signed by the
trial judge and file-stamped by the clerk of the court, was
ever entered as required by Nebraska law. See Neb.
Rev. Stat. § 25-1301 (Reissue 2008). Gray raised this
claim in a state petition for writ of habeas corpus filed on
July 12, 2018, in the Johnson County District Court of
Nebraska. (Filing No. 1 at CM/ECF p. 30-35.) The
state district court denied his petition on December 6, 2018,
following an evidentiary hearing concluding that:
allegations set forth in the petition are not jurisdictional
defects and, therefore, are not proper grounds for habeas
The Respondent cites State v. Avina-Murillo, 301
Neb. 185 (2018) to support the theory that a jury's
verdict is effective when it is finally rendered in open
court and received and accepted by the trial judge, not when
a judgment of verdict is signed, file-stamped and entered.
From the record before the court, this appears to have
occurred in DCR060000511 on December 7, 2007.
Furthermore, Petitioner's reliance on State v.
Engleman, 5 Neb.App. 485 (1997) is misplaced and
inapplicable to the facts of this case. Cf State v.
Macek, 278 Neb. 967 (2009) (defendant could not
collaterally attack his prior convictions on the ground that
they lacked a file stamp). A finding of guilt is a
conviction, but it is not a judgment or final order, which
does not take place until a sentence has been imposed.
See State v. Long, 205 Neb. 252 (1980).
(Filing No. 1 at CM/ECF p. 176.) Gray appealed to
the Nebraska Court of Appeals which sustained the State's
motion for summary affirmance on September 3, 2019.
(Id. at CM/ECF pp. 10, 272-292.) Gray's petition
for further review was denied on October 9, 2019.
(Id. at CM/ECF pp. 10, 293-301.)
2241 authorizes federal district courts to issue a writ of
habeas corpus to a state or federal prisoner who is in
custody in violation of the Constitution or laws or treaties
of the United States. 28 U.S.C. § 2241(c)(3). Section
2254 confers jurisdiction on district courts to
“entertain an application for a writ of habeas corpus
in behalf of a person in custody pursuant to the judgment of
a State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). It is a
well-established rule of statutory construction that when two
statutes cover the same situation, the more specific statute
takes precedence over the more general one. See
Edmond v. United States, 520 U.S. 651, 657 (1997). A
number of circuit courts have held that Section 2254 and its
provisions take precedence over Section 2241 because it is
the more specific statute. See Medberry v. Crosby,
351 F.3d 1049, 1060 (11th Cir. 2003); Cook v. New York
State Div. of Parole, 321 F.3d 274, 279, n.4 (2nd Cir.
2003); Coady v. Vaughn, 251 F.3d 480, 484-85 (3rd
Gray filed his habeas petition pursuant to 28 U.S.C. §
2241, it is apparent that Gray is challenging his state-court
conviction (or purported lack thereof) and the resulting
detention. The appropriate and exclusive avenue for doing so
is through a petition for writ of habeas corpus brought
pursuant to 28 U.S.C. § 2254. Thus, the court concludes
that Gray is not entitled to habeas relief pursuant to §
2241 and this matter should be dismissed.
the court were to construe Gray's petition as one brought
under 28 U.S.C. § 2254, the court would lack
jurisdiction to review it as the petition would be
successive. The court's records reflect that Gray
unsuccessfully challenged his 2008 conviction in the
Lancaster County District Court of Nebraska in No. CR06-511
in earlier federal habeas corpus litigation. See Gray v.
Britten, No. 4:10CV3219 (D.Neb.) (Filing No.
28, September 7, 2011 Memorandum and Order dismissing
petition with prejudice on the merits). Thus, Gray would be
required to seek the permission of the Eighth Circuit Court
of Appeals to commence this successive action under §
2254. 28 U.S.C. § 2444(b)(2) & (3)(A);
Burton v. Stewart, 549 U.S. 147, 152 (2007) (the
district court lacked jurisdiction to entertain habeas
petition since prisoner did not obtain an order authorizing
him to file second petition). Gray may not avoid the
strictures applicable to § 2254 habeas petitions by
mischaracterizing his habeas petition as one for relief under
28 U.S.C. § 2241.
Gray sought relief under 28 U.S.C. § 2241, he must
obtain a certificate of appealability if he wishes to appeal.
See 28 U.S.C. § 2253; Fed. R. App. P. 22(b)(1);
Rule 1(b) and Rule 11(a) of the Rules Governing Section
2254 Cases in the United States District Courts. 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, ...