Chapman v. Lincoln Regional Center

Filing 11

MEMORANDUM AND ORDER after initial review. The petition for writ of habeas corpus (Filing No. 1 ) is dismissed without prejudice. No certificate of appealability has been or will be issued. All pending motions (Filing Nos. 3 , 4 , 6 , 7 , 8 , 9 , & 10 ) are denied. A judgment will be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BILLIE JOE CHAPMAN,
Petitioner,

4:18CV3002

vs.
LINCOLN REGIONAL CENTER,

MEMORANDUM
AND ORDER

Respondent.
This matter is before me for initial review of Petitioner Billie Joe Chapman’s
(“Chapman”) habeas corpus petition that I construe as seeking relief under 28
U.S.C. § 2241. I conduct an initial review of the petition under 28 U.S.C. § 2243.
Moreover, Rule 1(b) of the Rules Governing Section 2254 Cases in the United
States District Courts allows me to apply Rule 4 of those rules to a section 2241
action. Chapman has filed four earlier petitions regarding his ongoing state
criminal proceeding, all of which have been denied without prejudice, and I take
judicial notice of the records of this court in those cases. (See 8:17CV137;
8:17CV165; 8:17CV317; 8:17CV399.)1 For the reasons that follow, I will also
dismiss this petition without prejudice.
Chapman is currently being held in the Lincoln Regional Center as a result
of what he claims is an invalid order of commitment by the Douglas County
District Court of Nebraska dated August 21, 2017. Chapman’s state case records,2
available to this court on-line, show that Chapman was indeed declared
incompetent to stand trial on August 21, 2017, and the state judge further
determined that there was a substantial probability that in the foreseeable future
1

Chapman also has another habeas petition and “petition for further review” pending at
4:18CV3010.
2

State v. Chapman, No. CR17-729, Douglas County, Nebraska District Court.

Chapman will become competent. Chapman appealed3 the August 21, 2017
decision finding him incompetent, and that appeal was dismissed by the Nebraska
Court of Appeals on November 13, 2017, because “[t]he order appealed from dated
August 21, 2017, was not a final, appealable order and the appeal was not timely
filed.” (Filing No. 1 at CM/ECF p.6.)4 This finding by the Nebraska Court of
Appeals serves as the primary basis for Chapman’s current habeas petition.
Essentially, Chapman asserts that the August 21, 2017 order of commitment
was not made a part of the state court record, and thus, he is being illegally
detained in the Lincoln Regional Center without a valid, final order contained in
the record. Examination of the state court records shows that the August 21, 2017
order of commitment was not included in the electronic transcript prepared by the
Douglas County District Court and sent to the Nebraska Court of Appeals. (See
Filing No. 6 at CM/ECF p.5.) As a result, the Nebraska Court of Appeals found
there was no final, appealable order for it to review. While I understand
Chapman’s assertions that the omission of the August 21, 2017 order from the
appellate transcript frustrated his ability to exhaust his state judicial remedies,
Chapman’s claim that there is no valid, final order of commitment whatsoever in
the state court record is simply incorrect.
The August 21, 2017 order of commitment is clearly contained within the
Douglas County District Court case records and bears the file stamp of the Clerk of
the Douglas County District Court dated August 21, 2017. (See Filing No. 1 at
3

State v. Chapman, No. A-17-001003, Nebraska Court of Appeals.

4

Chapman has filed copies of several documents related to his state court criminal
proceedings with his habeas petition and in separate motions pending before the court. (See
Filing Nos. 1, 6.) Also, as I have noted before, this court has been afforded access to the
computerized record keeping system for the Nebraska state courts. I take judicial notice of the
state court records related to this case in State v. Chapman, No. CR17-729, Douglas County,
Nebraska District Court, and the Nebraska Court of Appeals appellate case records in A-17001003. See Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005) (court may take
judicial notice of judicial opinions and public records).

2

CM/ECF p.10–11.) For reasons unknown, however, it was not included in the
transcript submitted to the Nebraska Court of Appeals.5 When the transcript was
submitted to the state appellate court, a copy was also delivered to Chapman.
(Filing No. 6 at CM/ECF p.4.) Pursuant to the Nebraska Court Rules of Appellate
Procedure, if Chapman believed the transcript was missing necessary records, then
he was responsible for ensuring the clerk included those additional parts of the
record. Neb. Ct. R. App. P. § 2-104(A)(2) (“If the appellant is of the opinion that
other parts of the record are necessary for the proper presentation of the errors
assigned in this court, he or she shall further direct the clerk to include in the
transcript such additional parts of the record as he or she shall specify in the
praecipe . . . .”). Indeed, Chapman attempted to supplement the record with a copy
of the August 21, 2017 order of commitment in a motion filed after his appeal had
been dismissed, which the Nebraska Court of Appeals summarily overruled. Thus,
even Chapman has acknowledged that there is a final order finding him
incompetent to stand trial and committing him to the Lincoln Regional Center.
Notwithstanding the omission of the August 21, 2017 order of commitment
from the appellate transcript, the fact remains that Chapman’s appeal was untimely
as the Nebraska Court of Appeals concluded. Contrary to Chapman’s assertions,
Nebraska does not follow the prison mailbox rule, and his notice of appeal filed on
September 21, 2017, was filed one day after the 30-day time period for filing a
notice of appeal had expired. See Neb. Rev. Stat. § 25-1912(1) (notice of appeal
must be filed “within thirty days after the entry of [a] . . . final order”); State v.
Hess, 622 N.W.2d 891, 900 (Neb. 2001) (“[T]he date of receipt by the clerk’s
office, and not the date of mailing, is the relevant date for determining the
timeliness of a notice of appeal, as Nebraska does not have a ‘prison delivery
rule.’”).
5

This omission also explains my characterization in 8:17CV399 of Chapman’s appeal as
an appeal of the state court’s order requiring a mental health evaluation, rather than an appeal of
the order of commitment. (See Filing No. 4, Case No. 8:17CV399.) As explained here, I now
appreciate the full picture of what occurred with Chapman’s appeal. That appreciation, however,
does not convince me that Chapman is entitled to federal habeas relief.

3

As I have told Chapman before, principles of comity and federalism require
a federal court to abstain from deciding a pretrial habeas claim under 28 U.S.C. §
2241 unless the prisoner demonstrates that (1) he or she has exhausted available
state judicial remedies, and (2) special circumstances warrant federal intervention.
As in the related cases he has filed in this Court, Petitioner has failed to overcome
those hurdles in this case. See, e.g., Davis v. Mueller, 643 F.2d 521, 525 (8th
Cir.1981) (noting that the availability of federal habeas relief while state court
proceedings are still pending is limited by the “ ‘notion of comity’ ” and “the
proper respect for state functions”).
Chapman has not demonstrated special circumstances warranting this court’s
intervention in his ongoing state criminal proceedings. While Chapman claims his
speedy trial rights under Neb. Rev. Stat. § 29-1207 have been violated, “federal
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). A violation of Nebraska’s six-month rule in Neb. Rev.
Stat. § 29-1207 would constitute an affirmative defense. See Duffy v. Brown Cty.,
S.D., No. CIV 11-1038, 2012 WL 252641, at *10 (D.S.D. Jan. 25, 2012)
(concluding petitioner did not present exceptional circumstances to warrant habeas
relief where petitioner alleged violation of South Dakota’s 180-day speedy trial
rule). Here, Chapman does not seek to enforce his right to be brought promptly to
trial, but rather seeks outright dismissal of his state charges based on Nebraska law,
when such issue has not been addressed by the state courts.6 Under these
circumstances, federal interference with enforcement of Nebraska’s criminal laws
is not warranted. See Wingo v. Ciccone, 507 F.2d 354, 357 (8th Cir. 1974).

6

It appears that Chapman has only recently presented this issue to the state district court
in a motion for discharge filed on February 1, 2018. While the District Court of Douglas County,
Nebraska has stated it will not rule on any of Chapman’s motions while he is incompetent, there
is no indication that state court review of this issue will be precluded entirely, especially given
the periodic reviews required by the competency statute discussed below.

4

Moreover, avenues for state court review remain available to Chapman
courtesy of Nebraska’s competency statute, Neb. Rev. Stat. § 29-1823. Pursuant to
that statute, the state district court is required to hold a hearing in Chapman’s
criminal case “[w]ithin six months after the commencement of the treatment
ordered . . . , and every six months thereafter . . . to determine . . . whether the
accused is competent to stand trial.” Neb. Rev. Stat. § 29-1823. When Chapman
is brought up on review and if he is determined to be competent at that time, there
is no indication that he will not be afforded an opportunity to raise any
constitutional claims he may have and have them heard by the state courts. And if
he is determined to still be incompetent to stand trial, Chapman will be able to
appeal and challenge that determination in state court. See State v. Guatney, 299
N.W.2d 538, 543 (Neb. 1980) (holding that “an order finding [an accused]
incompetent to stand trial and ordering him confined until such time as he is
competent is a final order from which an appeal may be taken.”).
Because Chapman has not exhausted his state court remedies and no special
circumstances warrant federal intervention, Chapman’s petition for a writ of
habeas corpus will be dismissed without prejudice.
Although Chapman 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. See also Hoffler v. Bezi, 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, 484–85 (2000). The court has applied the
appropriate standard and determined that Chapman is not entitled to a certificate of
appealability.

5

IT IS THEREFORE ORDERED that:
1.
The petition for writ of habeas corpus (Filing No. 1) is dismissed
without prejudice. No certificate of appealability has been or will be issued.
2.

All pending motions (Filing Nos. 3, 4, 6, 7, 8, 9, & 10) are denied.

3.

A judgment will be entered by separate document.

Dated this 22nd day of March, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

6