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McCullough v. State of Nebraska, 8:17CV487. (2017)

Court: District Court, D. Nebraska Number: infdco20171229984 Visitors: 8
Filed: Dec. 27, 2017
Latest Update: Dec. 27, 2017
Summary: MEMORANDUM AND ORDER RICHARD G. KOPF , Senior District Judge . 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 i
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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.

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.

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.

FootNotes


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.
Source:  Leagle

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