Woolman v. Lancaster County Corrections

Filing 8

MEMORANDUM AND ORDER- The court lacks subject matter jurisdiction to issue a writ of habeas corpus in this matter. Petitioner shall have until May 20, 2011, to file an amended Petition and clarify whether he his challenging the validity of his convi ction or collateral consequences attached to his conviction. If Petitioner fails to file an amended petition in accordance with this Memorandum and Order, the court will dismiss the Petition without prejudice for lack of subject matter jurisdiction. The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: Check for amended petition on May 20, 2011, and dismiss if none filed. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 5/20/2011: Check for amended petition on May 20, 2011, and dismiss if none filed.) Ordered by Judge Richard G. Kopf.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL B. WOOLMAN,
Petitioner,
v.
LANCASTER COUNTY
ATTORNEYS OFFICE,
Respondent.

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4:11CV3044

MEMORANDUM
AND ORDER

The court has conducted an initial review of the Petition for Writ of Habeas
Corpus (filing no. 1) to determine whether the claims made by Petitioner are, when
liberally construed, potentially cognizable in federal court. Petitioner asserts that on
June 14, 2010, he pled no contest to disturbing the peace and was sentenced to 5 days
in jail. (Id. at CM/ECF p. 1.) Liberally construed, Petitioner also asserts that while
he was confined, three correctional officers “[e]ntrapped” him, beat him to the ground
and “just about tasered” him to death. (Id. at CM/ECF p. 6.)
In Preiser v. Rodriguez, the Supreme Court clarified that a habeas corpus
action “is an attack by a person in custody upon the legality of that custody.” 411
U.S. 475, 484 (1973). If a petitioner is not challenging the validity of his conviction,
the length of his detention, or collateral consequences attached to a conviction, then
a writ of habeas corpus is not the proper remedy. See id. at 499; Spencer v. Kemna,
523 U.S. 1, 9 (1998) (describing how a writ of habeas corpus can still benefit a
petitioner, even after he has been released from confinement, by eliminating some of
the “collateral consequences that attached to the conviction as a matter of law”).
Here, Petitioner pled no contest to disturbing the peace on June 14, 2010, and
was sentenced to 5 days in jail. (Filing No. 1 at CM/ECF p. 2.) Petitioner does not
allege that his conviction is wrongful or that he is suffering from any attached

collateral consequences. Instead, Petitioner asserts that while he was confined, three
correctional officers “[e]ntrapped” him, beat him to the ground and “just about
tasered” him to death. (Id. at CM/ECF p. 6.) If, while in custody, correctional
officers used excessive force to violate Petitioner’s civil rights, Petitioner’s remedy
lies under 42 U.S.C. § 1983, not with a writ of habeas corpus. Indeed, Petitioner’s
excessive force allegations do not render his custody pursuant to his disorderly
conduct conviction unconstitutional, nor do they serve as a basis for vacating
Petitioner’s conviction. See, e.g., Sanford v. Motts, 258 F.3d 1117, 1120 (9th Cir.
2001) (“Excessive force used after an arrest does not destroy the lawfulness of the
arrest.”); Gerstein v. Pugh, 420 U.S. 103, 119 (1975) (holding that it is an
“established rule that illegal arrest or detention does not void a subsequent
conviction”). Accordingly, this court lacks subject matter jurisdiction to issue a writ
of habeas corpus in this matter.
However, on the court’s own motion, Petitioner shall have thirty days to file
an amended petition to clarify whether he his challenging the validity of his
conviction or collateral consequences attached to his conviction. If Petitioner fails
to file an amended petition in accordance with this Memorandum and Order, the
Petition shall be dismissed without prejudice for lack of subject matter jurisdiction.1
IT IS THEREFORE ORDERED that:
1.
The court lacks subject matter jurisdiction to issue a writ of habeas
corpus in this matter.

1

The court notes that Petitioner has also filed a section 1983 case in this court
that raises his excessive force claims. (See Case No. 11CV3043, Filing No. 1.)
Therefore, to the extent that Petitioner mislabeled his Petition, dismissing it will not
prevent him from litigating his excessive force claims.
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2.
Petitioner shall have until May 20, 2011, to file an amended Petition and
clarify whether he his challenging the validity of his conviction or collateral
consequences attached to his conviction.
3.
If Petitioner fails to file an amended petition in accordance with this
Memorandum and Order, the court will dismiss the Petition without prejudice for lack
of subject matter jurisdiction.
4.
The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: Check for amended petition on May 20,
2011, and dismiss if none filed.
DATED this 19th day of April, 2011.
BY THE COURT:
Richard G. Kopf
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
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their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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