Battle v. Nebraska Department of Corrections

Filing 19

MEMORANDUM AND ORDER - On the Court's own motion, Petitioner has 30 days to show cause why this matter should not be dismissed without prejudice because Petitioner has not exhausted his state court remedies. Failure to respond to the Court� 39;s Memorandum and Order will result in dismissal of this matter without further notice. The Clerk's office is directed to set a pro se case management deadline in this matter with the following text: February 16, 2015: Deadline for Petitioner to show cause why case should not be dismissed. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
STEVEN K. BATTLE,
Petitioner,
v.
NEBRASKA DEPARTMENT OF
CORRECTIONS,
Respondent.

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CASE NO. 4:14CV3201

MEMORANDUM
AND ORDER

Petitioner Steven K. Battle (“Petitioner” or “Battle”) filed a Petition for Writ of Habeas
Corpus (Filing No. 1) on October 6, 2014. Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts requires the court to conduct a preliminary
review of each petition for writ of habeas corpus. The court must summarily dismiss a
petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner
is not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing § 2254
Cases in the United States District Courts.
I. BACKGROUND
The habeas corpus petition sets forth that Battle pled no contest to the charge of
possession of a controlled substance on August 4, 2014, in the District Court of Cass
County, Nebraska. He was sentenced to one to two years’ imprisonment on August 18,
2014. (Filing No. 1 at ECF 1.) As of the date he filed his petition in this case, he had not
filed an appeal to Nebraska’s appellate courts. (See id. at ECF 3-5.)

II. HABEAS EXHAUSTION REQUIREMENT
As set forth in 28 U.S.C. § 2254(b)(1):
(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)
(ii)

there is an absence of available State corrective
process; or
circumstances exist that render such process
ineffective to protect the rights of the applicant.

28 U.S.C. § 2254(b)(1).
The 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 Nebraska Court of Appeals rules against the petitioner. See Akins v. Kenney, 410
F.3d 451, 454-55 (8th Cir. 2005).

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III. DISCUSSION
It is apparent from the habeas corpus petition that Battle did not exhaust his state
court remedies prior to filing suit in this Court. As of the date Battle filed his petition in this
case, he had not presented his claims to Nebraska’s appellate courts.
On the Court’s own motion, Petitioner will have 30 days to show cause why this
matter should not be dismissed without prejudice because his claims have not been
exhausted in Nebraska’s state courts. Failure to respond to this Memorandum and Order
will result in dismissal of this matter without further notice. Accordingly,
IT IS ORDERED:
1.

On the Court’s own motion, Petitioner has 30 days to show cause why this

matter should not be dismissed without prejudice because Petitioner has not exhausted
his state court remedies;
2.

Failure to respond to the Court’s Memorandum and Order will result in

dismissal of this matter without further notice; and
3.

The Clerk’s office is directed to set a pro se case management deadline in

this matter with the following text: February 16, 2015: Deadline for Petitioner to show cause
why case should not be dismissed.

DATED this 14th day of January, 2015.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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