Chapman v. Retelsdorf, et al
MEMORANDUM AND ORDER that the petition for writ of habeas corpus (filing no. 1 ) is denied without prejudice. All pending motions (including filing no. 18 , filing no. 19 , filing no. 20 , filing no. 21 , filing no. 24 and filing no. 25 ) are denied. No certificate of appealability has been or will be issued. Judgment will be entered by a separate document. 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,
JUDGE RETELSDORF, SEAN
LYNCH, Douglas County Attorney
Office, MARK FOXHALL, Douglas
County Department of Corrections,
C.E.O., and KLAUS HARTMANN,
Lincoln Regional Center, M.D.,
MEMORANDUM AND ORDER
This is a habeas corpus action by a pretrial detainee that I construe to have been
filed pursuant to 28 U.S.C. § 2241. I conduct an initial review of the petition under 28
U.S.C. § 2243. 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 2241
Among other things, Chapman claims he is not guilty and disputes his placement
at a state mental institution. His state case records,1 available to this court on-line, show
that Petitioner has been declared incompetent to stand trial and that he is currently
appealing that determination. Those records further show that the state judge
determined on August 21, 2017, that there was a substantial probability that in the
foreseeable future Petitioner will become competent. I take judicial notice of the state
court records and the records of this court in 8:17CV165 and 8:17CV137. See Stutzka
v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005) (court may take judicial notice of
judicial opinions and public records).
State v. Chapman, No. CR17-729, Douglas County, Nebraska District Court.
As I have told Chapman before, principles of comity and federalism require a
federal court to abstain from deciding a pretrial habeas claim under 28 U.S.C. § 2241
unless the prisoner demonstrates that (1) he or she has exhausted available state judicial
remedies, and (2) special circumstances warrant federal intervention. As in the related
cases he has filed in this Court, Petitioner has failed to overcome those hurdles in this
case. See, e.g., Davis v. Mueller, 643 F.2d 521, 525 (8th Cir.1981) (noting that the
availability of federal habeas relief while state court proceedings are still pending is
limited by the “ 'notion of comity' ” and “the proper respect for state functions”).
Although Petitioner sought relief under 28 U.S.C. § 2241, he must obtain a
certificate of appealability if he wishes to appeal. See 28 U.S.C. § 2253; Fed. R. App.
P. 22(b)(1); Rule 1(b) and Rule 11(a) of the Rules Governing Section 2254 Cases in the
United States District Courts. See also Hoffler v. Bezi, 726 F.3d 144, 153 (2d Cir.
2013) (collecting cases of courts that ruled a state prisoner who petitions for habeas
relief under 28 U.S.C. § 2241 must obtain a certificate of appealability).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). The court has applied the appropriate standard and determined that
Petitioner 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 prejudice. All pending motions (including filing no. 18, filing no. 19,
filing no. 20, filing no. 21, filing no. 24 and filing no. 25) are denied. No certificate of
appealability has been or will be issued. Judgment will be entered by a separate
DATED this 29th day of September, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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