McCullough v. State of Nebraska et al

Filing 3

MEMORANDUM AND ORDER dismissing Petition for Writ of Habeas Corpus 1 filed by Wallace Raymond McCullough. 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 petitioner)(CCB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WALLACE RAYMOND
MCCULLOUGH,
Petitioner,
v.
STATE OF NEBRASKA, and DAN
BRYAN, Judge,
Respondents.

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8:17CV487

MEMORANDUM AND ORDER

This is case is before me for initial review. Petitioner has filed a habeas corpus
petition. He challenges a state district judge’s order holding him in contempt of court
for failure to abide by that court’s orders in a divorce matter that involve alleged
noncompliance with a child support order and alleged noncompliance with a property
settlement order.
Petitioner alleges that he has been sentenced to one year and six months in jail
for contempt of court. However, from his petition it appears that he has not been taken
into custody. Moreover, Petitioner alleges that the matter is now pending in the
Nebraska Supreme Court and he is correct. See Wallace McCullough v. Michelle
McCullough, A 17-0037 (Supreme Court of Nebraska).1 The matter is set for
argument in that court’s February 2018 term.

1

The records of the Nebraska courts are electronically available to this court by
special arrangement with the Nebraska judicial system. I take judicial notice of those
records regarding this case as I am allowed do under Fed. R. Evid. 201(b) and
otherwise.

In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court recognized the
“longstanding public policy against federal court interference with state court
proceedings[.]” Id. at 43. Under what has become known as “the Younger abstention
doctrine, federal courts may not, absent extraordinary circumstances, stay or enjoin
pending state criminal proceedings.” Roberts v. Dicarlo, 296 F. Supp. 2d 1182, 1185
(C.D. Cal. 2003) (applying Younger in a habeas case and dismissing without
prejudice). See also Wilson v. Gastelo, No. CV1701774, WL 2436022, at *2 (C.D.
Cal. May 15, 2017), report and recommendation adopted, No. CV1701774, 017 WL
2432553 (C.D. Cal. June 1, 2017) (same).
“Younger abstention is required if the state proceedings are (1) ongoing; (2)
implicate important state interests; and (3) afford the plaintiff an adequate opportunity
to raise the federal issue.” Roberts, 296 F. Supp. 2nd at 1185. Such is the case here.
I realize that abstention may be inappropriate in extraordinary circumstances
but none are evident here. Petitioner worries that if a warrant is executed he will lose
his job as a police officer. Among other things, given that that the petition alleges and
Petitioner thus admits that the state district court provided Petitioner with two "purge
plans”, given that this matter has been pending for a long time before the Nebraska
courts and Petitioner remains free, and given that the Nebraska Supreme Court took
this case from the Nebraska Court of Appeals thus assuring extremely careful review
by Nebraska’s highest court, I am not persuaded that the Petitioner's concern presents
an extraordinary circumstance.
Lastly, a 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
Petitioner is not entitled to a certificate of appealability.
2

IT IS ORDERED that the petition (filing no. 1) is dismissed without prejudice.
No certificate of appealability has been or will be issued. A separate judgment will be
issued.
DATED this 27th day of December, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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