Rush v. Johnson

Filing 3

MEMORANDUM AND ORDER 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. 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
CLIFFORD RUSH,
Petitioner,
v.
BRAD JOHNSON, DIRECTOR
LANCASTER COUNTY JAIL,
Respondent.

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8:18CV6

MEMORANDUM AND ORDER

This case is before me for initial review. Petitioner has filed a habeas corpus
petition. He challenges the ongoing state criminal action brought against him for
terroristic threats, use of a firearm to commit a felony, false imprisonment, use of a
firearm to commit a felony, and possession of a firearm by a prohibited person.1 He
has been arraigned, entered a not guilty plea, and has been detained pending trial. He
has a very experienced lawyer in the state proceeding.
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. 2nd1182, 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, 17 WL
2432553 (C.D. Cal. June 1, 2017) (same).
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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 to under Fed. R. Evid. 201(b) and
otherwise.

“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.
However, none are evident here.
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.
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 17th day of January, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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