Haynie v. United States of America
MEMORANDUM AND ORDER - that the petition for writ of habeas corpus (filing no. 1 ) is denied and dismissed without prejudice. No certificate of appealability has been or will be issued. Judgment will be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
UNITED STATES OF AMERICA,
MEMORANDUM AND ORDER
Pending before me is a petition for writ of habeas corpus explicitly brought
under 28 U.S.C. § 2241. Petitioner attacks his pending federal criminal prosecution in
this court bearing number 8:15CR343. That case is now being tried by Judge
I construe the 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. § 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.
I now dismiss the petition without prejudice. See, e.g., Horning v. Sefart, 107
F.3d 11 (6th Cir. 1997) (table) (“[T]he grounds upon which the right to the writ are
asserted are, in substance, defenses to Horning’s criminal prosecution. It appears from
the record that Horning, at the time she filed her petition, had not been tried on the
indictment for which she was charged. The habeas petition was properly dismissed as
that remedy cannot be invoked to raise defenses to a pending federal criminal
prosecution. See, e.g., Jones v. Perkins, 245 U.S. 390 (1918); Riggins v. United States,
199 U.S. 547, 548-50 (1905); Ex parte Finn, 16 F.Supp. 1 (E.D.Ky.1936).”)
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. 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
IT IS ORDERED that the petition for writ of habeas corpus (filing no. 1) is
denied and dismissed without prejudice. No certificate of appealability has been or
will be issued. Judgment will be entered by separate document.
DATED this 13th day of February, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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