Campbell v. Frakes et al

Filing 21

MEMORANDUM AND ORDER that this case is dismissed without prejudice because Campbell failed to prosecute it. The court will enter judgment by a separate document. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HERBERT L. CAMPBELL,
Petitioner,
v.
SCOTT R. FRAKES, and BRIAN
GAGE,
Respondents.

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4:15CV3110

MEMORANDUM
AND ORDER

This matter is before the court on its own motion. Petitioner Herbert Campbell
filed the habeas corpus petition (Filing No. 1) at issue in this case on September 14,
2015. Though not entirely clear, Campbell’s habeas corpus action appears to be a
challenge to a 1989 conviction for manslaughter in the Douglas County, Nebraska,
District Court. The court takes judicial notice of the public records of the Nebraska
Department of Correctional Services (“NDCS”), which reflect Campbell was released
from incarceration based on this conviction more than 15 years ago, though he has
since been convicted and incarcerated for other offenses.1 See NDCS Inmate Locator,
http://dcs-inmatesearch.ne.gov/Corrections/InmateDisplayServlet?DcsId=39753 (last
visited March 2, 2016).

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Nothing in Campbell’s petition suggests he is “in custody” under the
conviction or sentence he seeks to challenge in this case. See Maleng v. Cook, 490
U.S. 488, 490-91 (1989) (“The federal habeas statute gives the United States district
courts jurisdiction to entertain petitions for habeas relief only from persons who are
‘in custody’ in violation of the Constitution or laws or treaties of the United States.
We have interpreted the statutory language as requiring that the habeas petitioner be
‘in custody’ under the conviction or sentence under attack at the time his petition is
filed.”).

On January 20, 2016, the court conducted an initial review of Campbell’s
petition. The court determined Campbell’s petition did not clearly indicate the
judgment challenged or the grounds alleged. (Filing No. 15.) The court ordered
Campbell to file an amended petition for writ of habeas corpus within 30 days. To
date, Campbell has not filed an amended petition and the time in which to do so has
passed.
IT IS THEREFORE ORDERED that: This case is dismissed without prejudice
because Campbell failed to prosecute it. The court will enter judgment by a separate
document.
DATED this 2nd day of March, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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