Chapman v. Douglas County Dept. of Corrections Douglas County Nebraska
MEMORANDUM AND ORDER that the petition for writ of habeas corpus (filing no. 1 ) is denied without prejudice. The motion to name respondents (filing no. 6 ) is denied as moot. No certificate of appealability has been or will be issued by the undersigned. A separate judgment will be entered. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BILLIE JOE CHAPMAN,
DOUGLAS COUNTY DEPT. OF
MEMORANDUM AND ORDER
Pending before me is a petition for writ of habeas corpus and a motion to amend
the petition seeking to specifically name the respondents. I shall deny the petition
without prejudice and deny the motion as moot.
Chapman is charged with burglary in the Douglas County, Nebraska District
Court. He is in custody because he can’t or won’t make bail. He has not been
convicted and thus, as a pretrial detainee, I construe his petition under the provisions
of 28 U.S.C. § 2241(c)(3). I conduct an initial review of the petition under 28 U.S.C.
§ 22431. 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
For pretrial detainees, section 2241, rather than section 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)
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.
Chapman generally claims that he is not guilty, that he is being “railroaded” and
that his bond is excessive2. However, he has attached to his petition a copy of a state
trial judge’s order dated April 12, 2017. Among other things, that order shows that (1)
the petitioner is represented by counsel; (2) the state judge held a hearing on April 4,
2017, where the judge heard arguments directly responsive to the allegations made
here; (3) the judge reviewed the order setting bail but refused to change it; (4) the
judge took evidence, including the probable cause affidavit, and refused to quash the
prosecution; and (5) the judge denied a petition for writ of habeas corpus. That order
also shows that the petitioner withdrew his motion for a writ of mandamus.
Additionally, the judge set trial for September 5, 2017.
Chapman is not now entitled to relief because he has failed to show
extraordinary or special circumstances that would warrant a federal court intervening
in an ongoing state prosecution. See, e.g., Stacy L. Davis, et al, § 41:311.Interaction
of pretrial habeas petition with abstention, 16A Fed. Proc., L. Ed. § 41:311 (collecting
Principles of comity and federalism require a federal court to abstain
from deciding a pretrial habeas claim under 28 U.S.C.A. § 2241 claim
unless the prisoner demonstrates that (1) he or she has exhausted
available state judicial remedies, and (2) special circumstances warrant
federal intervention. This policy of equitable restraint is founded on the
premise that ordinarily a pending state prosecution provides the accused
a fair and sufficient opportunity for the vindication of federal
constitutional rights. Federal courts should abstain from the exercise of
28 U.S.C.A. § 2241 jurisdiction if the issues raised in the petition may be
According to the Douglas County, Nebraska Inmate Locator (an internet site
provided by the County), Chapman’s bail for the burglary charge is $30,000 with the
option to post ten percent of that amount to secure his release. That record also shows
that Chapman has been in custody since February 9, 2017. I take judicial notice of this
resolved either by trial on the merits in the state court or by other state
procedures available to the petitioner. Only in the most unusual
circumstances is a defendant entitled to have federal interposition by way
of injunction or habeas corpus until after the jury comes in, the judgment
has been appealed from, and the case has been concluded in the state
Id. (footnotes omitted).
Finally, and relying upon the broad language in § 2253(c)(1)(A) (“the detention
complained of arises out of process issued by a State court”), I determine that the
certificate of appealability requirement is applicable to § 2241 petitions filed by state
prisoners who are pretrial detainees. 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 Chapman is not entitled to a
certificate of appealability.
IT IS ORDERED that:
The petition for writ of habeas corpus (filing no. 1) is denied without
The motion to name respondents (filing no. 6) is denied as moot.
No certificate of appealability has been or will be issued by the
A separate judgment will be entered.
DATED this 18th day of May, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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