Bartunek v. Foxall et al
MEMORANDUM AND ORDER that this case is dismissed without prejudice. A separate judgment will be entered. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (E-mailed to Judge Rossiter and Magistrate Judge Bazis) (KMG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARK FOXALL, Director of Douglas
County Department of Corrections; and
UNITED STATES OF AMERICA,
This matter is before the court on initial review of Petitioner Gregory
Bartunek’s (“Bartunek”) Petition for Writ of Habeas Corpus filed pursuant to 28
U.S.C. § 2241. (Filing No. 1.) For the reasons discussed below, the court will
dismiss Bartunek’s petition without prejudice.
Bartunek is a federal pretrial detainee confined at the Douglas County
Department of Corrections awaiting trial in a pending criminal case: USA v.
Bartunek, Case No. 8:17-cr-28 (D. Neb.). On January 19, 2017, he was indicted on
one count of distribution of child pornography and one count of possession of child
pornography. (Filing No. 1, Case No. 8:17-cr-28.) On February 23, 2017,
Magistrate Judge Susan M. Bazis ordered that Bartunek be released on bond. (Text
Minute Entry No. 17, Case No. 8:17-cr-28.) The Government appealed the bail
determination to Judge Robert F. Rossiter, Jr., the presiding district court judge.
(Filing No. 24, Case No. 8:17-cr-28.) On February 28, 2017, Judge Rossiter
ordered that Bartunek be detained pending trial. (Filing No. 28, Case No. 8:17-cr28.) On March 30, 2017, Bartunek filed a Motion to Re-Open the detention
hearing. (Filing No. 38, Case No. 8:17-cr-28.) On April 11, 2017, Judge Rossiter
denied Bartunek’s motion. (Text Minute Entry No. 45, Case No. 8:17-cr-28.) On
April 24, 2017, Bartunek appealed the bail determination to the Eighth Circuit
Court of Appeals. (Filing No. 55, Case No. 8:17-cr-28.) On May 24, 2017, the
Eighth Circuit issued a judgment denying Bartunek’s motion for release pending
trial. (Filing No. 123, Case No. 8:17-cr-28.) The mandate issued on June 14, 2017.
(Filing No. 157, Case No. 8:17-cr-28.)
Condensed and summarized, Bartunek’s claims relate to his pending
criminal prosecution1 and to his pre-trial detention. (See Filing No. 1 at CM/ECF
pp. 1-2.) Bartunek seeks immediate release from pretrial custody, that all charges
against him be dismissed with prejudice, and that the property seized during the
investigation be returned to him. (Id.)
Although 28 U.S.C. § 2241 establishes jurisdiction in the federal courts to
consider pretrial habeas corpus petitions, the petitioner must first exhaust his
available remedies. McNeil v. Newton, No. 4:06C3305, 2007 WL 257668, at *1 (D.
Neb. Jan. 25, 2007) (citing Braden v. 30th Judicial Circuit Court of Kentucky, 410
U.S. 484, 489-90 (1973) (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)); see also Jones v. Perkins, 245 U.S. 390,
391 (1918) (“It is well settled that in the absence of exceptional circumstances in
criminal cases the regular judicial procedure should be followed and habeas corpus
should not be granted in advance of trial.”). With the exception of his pre-trial
detention claims, Bartunek’s claims would be dispositive of his pending federal
criminal charges and must be exhausted at trial and on appeal in the federal courts
before habeas corpus relief would be available. See Moore v. United States, 875
F.Supp. 620, 624 (D. Neb.1994), appeal dismissed, 54 F.3d 782 (8th Cir. 1995)
To include claims of illegal search and seizure, violation of due process,
violation of privilege against self-incrimination, unlawful arrest, ineffective
assistance of counsel, and deficient indictment.
(“Thus where habeas claims raised by a pretrial detainee would be dispositive of
the pending federal criminal charges, principles of federal court efficiency require
that the petitioner exhaust those claims by presenting them at trial and then on
direct appeal.”).2 Bartunek cannot challenge his pending federal prosecution in his
current habeas petition.
Bartunek also cannot challenge the pre-trial detention order in his habeas
petition for two reasons. See e.g., Watson v. United States, No. 2:12-CV-12678,
2012 WL 4378582 (E.D. Mich. Sept. 25, 2012). First, “the appropriate vehicle for
[Bartunek] to challenge his pre-trial detention is an expedited appeal procedure
provided by the Bail Reform Act, 18 U.S.C. § 3145(b), (c), not a habeas corpus
petition.” See id. (citing Whitmer v. Levi, 276 Fed. Appx. 217, 219 (3rd Cir.
2008)); see also Fassler v. United States, 858 F.2d 1016, 1017-18 (5th Cir. 1988)
(declining to hold that § 3145 provides the exclusive means to challenge pretrial
detention but finding “the terms of the Bail Reform Act and the potential for abuse
of the writ and for unnecessary duplication of appeals, as demonstrated below,
should ordinarily provide strong incentive for defendants to employ Section 3145
Second, the Eighth Circuit Court of Appeals denied Bartunek’s motion for
release pending trial. “Law of the case terminology is often employed to express
the principle that inferior tribunals are bound to honor the mandate of superior
One consideration for the exhaustion rule is to discourage “judge
shopping,” where, as in this case, one judge is assigned to handle the criminal trial
and a second judge is assigned to handle the civil habeas petition. See Moore, 875
F.Supp. at 624. Bartunek is obviously attempting to circumvent or undermine the
authority of Magistrate Judge Bazis and/or Judge Rossiter in his criminal case. A
review of the docket sheet in his criminal case shows that Bartunek filed multiple
motions, including motions to suppress, a motion to amend, a motion to dismiss, a
motion for order to release property, a motion to compel, and a motion for a
Franks hearing, in April and May of this year. (See Docket Sheet, Case No. 17-cr28.) On August 9, 2017, in her “Findings and Recommendation,” Magistrate Judge
Bazis recommended to Judge Rossiter that he deny Bartunek’s motions. (Filing
No. 184, Case No. 17-cr-28.) Bartunek filed his habeas petition seven days later.
courts within a single judicial system.” United States v. Bartsh, 69 F.3d 864, 866
(8th Cir. 1995) (quoting 18 Wright, Miller & Cooper, supra, § 4478 at 792). The
law of the case doctrine prevents the relitigation of this issue, see e.g., Watson,
2012 WL 4378582 at *3, or alternatively, entertaining the issue again allows for
duplicitous litigation, see e.g., Muhammad v. Holder, No. CA 1:12-25-PMD-SVH,
2012 WL 5457385, at *5 (D.S.C. Sept. 18, 2012), report and recommendation
adopted sub nom. Muhammad v. Cannon, No. CA 1:12-25-PMD-SVH, 2012 WL
5457374 (D.S.C. Nov. 8, 2012). Accordingly, Bartunek’s Petition for Writ of
Habeas Corpus (Filing No. 1) will be dismissed without prejudice. See Rule 4 of
the Rules Governing Habeas Corpus Cases Under Section 2254 (mandating that
courts dismiss facially insufficient petitions).3
IT IS THEREFORE ORDERED that:
This case is dismissed without prejudice.
A separate judgment will be entered.
The clerk’s office is directed to send a copy of this Memorandum and
Order to Judge Rossiter and to Magistrate Judge Bazis.
Dated this 21st day of September, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
Bartunek is not required to obtain a certificate of appealability to appeal the
court’s dismissal of his petition. See Langella v. Anderson, 612 F.3d 938, 939 n.2
(8th Cir. 2010).
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