Dunn v. Foxhall

Filing 3

MEMORANDUM AND ORDER that the petition for writ of habeas corpus (filing no. 1 ) is denied without prejudice. No certificate of appealability has been or will be issued. A separate judgment will be issued. 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
BRYAN DUNN,

)
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Petitioner,
)
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v.
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)
MARK FOXHALL, C.E.O. of the
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Douglas County Dept. of Corrections, )
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Respondent.
)
)

8:17CV376

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 action.
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. 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”).
Petitioner has failed to show that he has exhausted his available state judicial
remedies. He has also failed to show the special circumstances warranting federal

intervention. In coming to these conclusions, I reviewed the underlying court file in
the state court.1
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. No certificate of appealability has been or will be issued.
A separate judgment will be issued.
DATED this 13th day of October, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

1

State v. Dunn, CR 17 0001492 (Douglas County, Nebraska District Court).
This information is made available online to this court by the State of Nebraska
through the JUSTICE case search system.