Davis v. State of Nebraska
MEMORANDUM AND ORDER regarding Petition for Writ of Habeas Corpus 1 filed by Robert Davis. 1. The Petition for Writ of Habeas Corpus (Filing No. 1 ) is dismissed. 2. A separate judgment will be entered in accordance with this Memorandum and Order. 3. Petitioner's Motion for Summons and Motion for Status (Filing Nos. 6 and 12 ) are denied as moot. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party)(JAB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
STATE OF NEBRASKA,
This matter is before the court on initial review of Petitioner Robert Davis’s
Petition for Writ of Habeas Corpus (“Petition”) filed pursuant to 28 U.S.C. § 2254.
(Filing No. 1.) For the reasons discussed below, the court finds that Petitioner’s claims
are not cognizable in a federal habeas action.
Petitioner filed his Petition on March 15, 2012. He is incarcerated at a federal
correctional institution in Sandstone, Minnesota.
allegations are difficult to decipher. As best as the court can tell, Petitioner alleges that
his employer accused him of stealing various weapons, and he was subsequently
charged with the theft of those weapons in the County Court of Washington County,
Nebraska. These charges were ultimately dismissed. However, based on the factual
predicate leading to the charges in state court, he was convicted of being a felon in
possession of a firearm in federal court.1
Petitioner complains that state law
enforcement officers seized his family’s weapons during their investigation, and have
not returned them. As best as the court can tell, he asks this court to order state law
enforcement officers to return his family’s property. (Filing No. 1 at CM/ECF pp. 18.)
The court takes judicial notice of public records filed in the United States District Court for
the Southern District of Iowa reflecting that Petitioner was sentenced to 120 months in prison on
August 18, 2009, after a jury found him guilty of being a felon in possession of a firearm. See USA
v. Davis, No. 4:10CV162 (S.D. Ia.).
Title 28 U.S.C. § 2254 permits a federal court to entertain only those
applications alleging that a person is in state custody in violation of the Constitution
or laws or treaties of the United States. 28 U.S.C. § 2254(a). Here, Petitioner seeks
to compel state law enforcement officers to return property to his family that was
seized during a criminal investigation. In addition, it is clear from Petitioner’s
allegations that he is not in state custody, and he does not allege that he is being held
in violation of the Constitution or laws or treaties of the United States. Petitioner’s
claims are not cognizable in a federal habeas action.
IT IS THEREFORE ORDERED that:
The Petition for Writ of Habeas Corpus (Filing No. 1) is dismissed.
A separate judgment will be entered in accordance with this
Memorandum and Order.
Petitioner’s Motion for Summons and Motion for Status (Filing Nos. 6
and 12) are denied as moot.
DATED this 28 th day of August, 2012.
BY THE COURT:
s/ Joseph F. Bataillon
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, approve, or guarantee any third parties or the services
or products they provide on 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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