Higgins v. Burns et al

Filing 5

MEMORANDUM AND ORDER - that the petition for writ of habeas corpus (filing no. 1 ) is dismissed without prejudice, no certificate of appealability will be granted, and a separate judgment will be issued. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOSEPH W. HIGGINS,
Petitioner,
v.
BURNS, Judge, DOUGLAS
COUNTY DISTRICT COURT, and
LANCASTER LINCOLN
REGIONAL CENTER,
Respondents.

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8:17CV107

MEMORANDUM AND ORDER

Petitioner, a pretrial detainee, has filed a petition seeking release from custody
under 28 U.S.C. § 2241(c)(1)(3).1 Rule 1(b) of the Rules Governing § 2254 Cases in
the United States District Courts allows me to apply Rule 4 of those rules to a § 2241
petition. I do so now, finding and concluding that it plainly appears from the petition
and attached documents that he is not entitled to relief.
Petitioner complains that he has been held too long in the Lincoln Regional
Center where is undergoing a court ordered mental health evaluation and thus he has

1

For pretrial detainees, § 2241, rather than § 2254, is the correct statute under
which to proceed. Phillips v. Court of Common Pleas, Hamilton Cty., Ohio, 668 F.3d
804, 808 (6th Cir. 2012) (District court, in determining the legal standards applicable
to a habeas petition brought by a state pretrial detainee, should have evaluated petition
under the statute generally granting habeas authority to federal courts, rather than the
habeas statute specifically addressing those “in custody pursuant to the judgment of
a State court”; while the detainee remained “in custody,” his custody was not
“pursuant to the judgment of a State court,” but, rather, he was in custody pursuant to
an indictment)

been denied a prompt preliminary hearing on the August 9, 2016 charges2. Yet he
admits that he is scheduled for a preliminary hearing on May 5, 2017. He also asserts
that race played a part in the delay of his preliminary hearing, but provides no facts
to back up that assertion. Indeed, such an assertion appears to be frivolous as his
public defender sought the evaluation. Furthermore, the delay between August 16,
2016, when the court granted the motion of the public defender, and May 5, 2017, the
date of petitioner’s preliminary hearing, is the result of an effort by Petitioner’s public
defender to determine whether Petitioner is competent to stand trial. From the face
of the petition, that delay is not unduly long. Accordingly, the petition will be
dismissed without prejudice.
Finally, Petitioner cannot appeal an adverse ruling on his petition for writ of
habeas corpus under § 2254 unless he is granted a certificate of appealability. 28
U.S.C. § 2253(c)(1); 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b)(1). 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,
484-485 (2000). I have applied the appropriate standard and determined that Fletcher
is not entitled to a certificate of appealability.
IT IS ORDERED that the petition for writ of habeas corpus (filing no. 1) is
dismissed without prejudice, no certificate of appealability will be granted, and a
separate judgment will be issued.
DATED this 6th day of April, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

2

Petitioner was charged with making terroristic threats against a female. That
is a felony under Nebraska law.
2