Chuol v. State of Nebraska

Filing 4

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Chuol must voluntarily withdraw his habeas corpus petition within 30 days if he does not want this action to proceed as one brought pursuant to 28 U.S.C. § 2254. If Chuol fails to respond t o this order, the court will construe Chuol's petition as one filed pursuant to 28 U.S.C. § 2254. To the extent Chuol would like to raise any additional claims in this action, he must do so by filing an amended petition for writ of habea s corpus. Chuol must set forth all of his claims in an amended petition for writ of habeas corpus, even those identified in his original petition. To this end, the clerk of the court is directed to send to Chuol the AO 241 (Petition for Relief Fro m a Conviction or Sentence By a Person in State Custody). Any amended petition must be filed by Chuol within 30 days. To avoid confusion, any document Chuol sends to the clerk of the court for filing in this case must clearly display the case numb er. The clerk of the court is directed to set the following pro se case management deadline: August 21, 2015: check for request to withdraw; otherwise, direct clerk to update records to reflect this is a 2254 action. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party with AO 241 Form)(TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GAMAR G. CHUOL,
Petitioner,
v.
STATE OF NEBRASKA,
Respondent.

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8:15CV111

MEMORANDUM
AND ORDER

This matter is before the court on initial review of Petitioner Gamar Chuol’s
“Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241” (Filing No. 1). Chuol
set forth in his petition that he was convicted of first degree assault and use of a
weapon to commit a felony in the District Court of Douglas County, Nebraska. He
was sentenced on July 20, 2012. Chuol is currently incarcerated at the Nebraska State
Penitentiary.
Section 2241 authorizes federal district courts to issue a writ of habeas corpus
to a state or federal prisoner who is in custody in violation of the Constitution or laws
or treaties of the United States. 28 U.S.C. § 2241(c)(3). Section 2254 confers
jurisdiction on district courts to “entertain an application for a writ of habeas corpus
in behalf of a person in custody pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). It is a well-established rule of statutory
construction that when two statutes cover the same situation, the more specific statute
takes precedence over the more general one. See Edmond v. United States, 520 U.S.
651, 657 (1997). A number of circuit courts have held that Section 2254 and its
provisions take precedence over Section 2241 because it is the more specific statute.
See Medberry v. Crosby, 351 F.3d 1049, 1060 (11th Cir. 2003); Cook v. New York
State Div. of Parole, 321 F.3d 274, 279, n.4 (2nd Cir. 2003); Coady v. Vaughn, 251
F.3d 480, 484-85 (3rd Cir. 2001).

Here, it is apparent that Chuol is challenging his state-court conviction. The
appropriate vehicle for doing so is through a petition for writ of habeas corpus
brought pursuant to 28 U.S.C. § 2254. This order serves as notice to Chuol that the
court intends to construe his petition for writ of habeas corpus as one brought
pursuant to 28 U.S.C. § 2254. In the alternative, Chuol may move to voluntarily
withdraw his habeas corpus petition within 30 days. See Castro v. United States, 540
U.S. 375, 382-83 (2003) (requiring notice, warning, and opportunity to amend or
withdraw before recharacterization of pro se litigant’s motion as initial § 2255
motion; when these requirements unsatisfied, recharacterized motion not considered
§ 2255 motion rendering later motion successive); see also Martin v. Overton, 391
F.3d 710, 713 (6th Cir. 2004) (applying Castro to § 2254 petition). Should Chuol
decide to allow this action to proceed as one brought pursuant to Section 2254, he
should be aware of his obligation to raise all of his habeas corpus claims in this
action. This is because there is a statutory prohibition against successive petitions by
state prisoners codified in 28 U.S.C. § 2244.
IT IS THEREFORE ORDERED that:
1.
Chuol must voluntarily withdraw his habeas corpus petition within 30
days if he does not want this action to proceed as one brought pursuant to 28 U.S.C.
§ 2254. If Chuol fails to respond to this order, the court will construe Chuol’s
petition as one filed pursuant to 28 U.S.C. § 2254.
2.
To the extent Chuol would like to raise any additional claims in this
action, he must do so by filing an amended petition for writ of habeas corpus. Chuol
must set forth all of his claims in an amended petition for writ of habeas corpus, even
those identified in his original petition. To this end, the clerk of the court is directed
to send to Chuol the AO 241 (Petition for Relief From a Conviction or Sentence By

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a Person in State Custody). Any amended petition must be filed by Chuol within 30
days.
3.
To avoid confusion, any document Chuol sends to the clerk of the court
for filing in this case must clearly display the case number.
4.
The clerk of the court is directed to set the following pro se case
management deadline: August 21, 2015: check for request to withdraw; otherwise,
direct clerk to update records to reflect this is a 2254 action.
DATED this 20th day of July, 2015.
BY THE COURT:

s/ Joseph F. Bataillon
Senior 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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