Opinion
4:19CV3005
05-08-2019
JUSTIN GARDNER, Petitioner, v. STATE OF NEBRASKA, Respondent.
MEMORANDUM AND ORDER
Justin Gardner has failed to respond to the Respondent's Motion for Summary Judgment (filing no. 9; filing no. 10; filing no. 11) alleging that his habeas corpus petition is premature in that he has not exhausted his state remedies and in fact is pursuing a direct appeal in the state courts at this time. I find and conclude that there are no material facts in dispute, and that Petitioner has failed to exhaust his state court remedies as required by 28 U.S.C. § 2254(b)(1)(A). After taking judicial notice of state court records (filing no. 10), I now dismiss this action without prejudice because it is premature and the claims are unexhausted but may subsequently become exhausted on the merits.
Finally, 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 habeas corpus petition (filing no. 1) is denied and dismissed without prejudice. The Motion for Summary Judgment (filing no. 9) is granted as provided herein. No certificate of appealability has been or will be issued. Judgment will be issued by separate document.
DATED this 8th day of May, 2019.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge