Gladfelter v. Fox Hall

Filing 10

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
LARRY DARNELL GLADFELTER,
Petitioner,
vs.
M. FOX HALL, Dr.;

8:18CV262
MEMORANDUM
AND ORDER

Respondent.
Petitioner Larry Darnell Gladfelter, a prisoner currently incarcerated at the
Douglas County Correctional Center and subject to a federal detainer, has brought
a habeas corpus action pursuant to 28 U.S.C. § 2241. (Filing No. 1.) Gladfelter
filed another, almost identical § 2241 petition in Case Number 8:18CV306, which
I dismissed without prejudice. (See Filing Nos. 9, 10, Case No. 8:18CV306.) After
initial review under Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts,1 I also will dismiss this 28 U.S.C. § 2241 petition
without prejudice.
Gladfelter is awaiting a hearing on a second amended petition for an
offender under supervision in this court in case number 8:97-cr-00129. Allegation
four of the second amended petition (filing no. 113, Case No. 8:97-cr-00129)
alleges he violated state law by committing Strangulation, a Class IIIA Felony. The
state case is pending in Douglas County, Nebraska.
When summarized and condensed for clarity, Gladfelter raises the same
claim as in 8:18CV306; namely, he asserts that his rights under the Double
Jeopardy Clause are being violated because he faces revocation of supervised
1

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 petition. See also 28 U.S.C. §
2243.

release in the federal case based upon the same conduct for which he is facing state
prosecution. As I concluded in 8:18CV306, Gladfelter has failed to state a
cognizable claim for relief because the Double Jeopardy Clause does not apply in
this situation. See, e.g., United States v. Soto-Olivas, 44 F.3d 788, 789 (9th Cir.
1995) (Double Jeopardy Clause does not preclude criminal prosecution for conduct
which also serves as the basis for supervised release revocation).
Although Gladfelter 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). I have applied the appropriate standard and determined that Petitioner is
not entitled to a certificate of appealability.
IT IS THEREFORE 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 3rd day of August, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

2