IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

HOPE NPIMNEE,

Petitioner, 

vs. 

STATE OF NEBRASKA,

Respondent.

8:23CV169

MEMORANDUM AND ORDER

This matter is before the Court on Petitioner Hope Npimnee’s Petition for Writ of 

Habeas Corpus, Filing No. 1, brought pursuant to 28 U.S.C. § 2254, his motion for 

evidentiary hearing, Filing No. 2, and motion seeking appointment of counsel, Filing No. 

3. As Petitioner has paid the filing fee, the Court proceeds to initial review under Rule 4 

of the Rules Governing Section 2254 Cases in the United States District Courts. Upon 

initial review the Court will dismiss the petition without prejudice for the reasons set forth 

herein and will dismiss the remaining motions as moot. 

Petitioner alleges, and the state court records available to this court online

confirm,1 he was convicted of one count of third degree assault, one count of second 

degree criminal trespass, two counts of disturbing the peace, and one count of failure to 

1 See Stutzka v. McCarville, 420 F.3d 757, 761 n.2 (8th Cir. 2005) (court may take judicial notice of public 

records); Federal Rule of Evidence 201 (providing for judicial notice of adjudicative facts). Nebraska’s 

judicial records may be retrieved on-line through the JUSTICE site, 

https://www.nebraska.gov/justice/case.cgi.

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appear on April 22, 2022, and sentenced to 180 days’ imprisonment with four additional 

30 days sentences running concurrently pursuant to a no contest plea on June 3, 2022, 

in the District Court of Lancaster County, Nebraska, Case Number CR21-9105.

2

 Filing 

No. 1 at 1. 

“The federal habeas statute gives the United States district courts jurisdiction to 

entertain petitions for habeas relief only for persons who are ‘in custody in violation of the 

Constitution or laws or treaties of the United States.’” Maleng v. Cook, 490 U.S. 488, 490 

(1989) (per curiam) (emphasis in original) (quoting 28 U.S.C. § 2254(a)); see also

Leonard v. Nix, 55 F.3d 370, 372–73 (8th Cir. 1995); Weaver v. Pung, 925 F.2d 1097, 

1099 (8th Cir. 1991), cert. denied, 502 U.S. 828 (1991). Given the 180-day sentence 

imposed upon Petitioner, the question becomes whether Petitioner was still in custody 

pursuant to his conviction in CR21-9105 when he filed his habeas Petition currently before 

the Court on April 28, 2023.

The Supreme Court interprets the “statutory language as requiring that the 

petitioner be ‘in custody’ under the conviction or sentence under attack at the time” the 

petitioner files the habeas petition. Maleng, 490 U.S.at 490–91 (emphasis added) (citing 

Carafas v. LaVallee, 391 U.S. 234, 238 (1968)); see also Weaver, 925 F.2d at 1099

(“Custody is tested at the time of filing the petition. . . . A person whose sentence has fully 

expired at the time his petition is filed can not satisfy the custody requirement.” (internal 

citations omitted)). Put another way, once a person has fully served a state prison 

2

In his Petition, Petitioner lists both case number “CR21-9105” and “CR 21-1905.” It appears Petitioner

transposed the “1” and the “9” as the correct case number matching the allegations and dates in his Petition

is CR21-9105. See https://www.nebraska.gov/justice/case.cgi (last accessed May 3, 2023).

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sentence, he cannot thereafter seek federal habeas corpus review of that sentence, or 

the conviction that caused it.

Here, even if Petitioner had to serve all 180 days of his sentence in CR21-9105 

beginning from the date he was sentenced, without any credit for time served or early 

release based on Nebraska’s good time law, see Neb. Rev. Stat. § 47-502 (Reissue 

2021), then Petitioner would have been in custody under case number CR21-9105 no 

later than November 30, 2022. While based on the Court’s own records3 and the 

judicially noticed state records, Petitioner is currently incarcerated, having been convicted 

and sentenced in another matter before the District Court of Lancaster County, Nebraska, 

Case Number CR22-350, he is no longer in custody under his sentence from CR21-9105, 

under attack in the Petition before this Court. 

As the records show that Petitioner’s sentence for that conviction had already 

expired when he filed this habeas Petition, he cannot satisfy the “in custody” requirement 

imposed by 28 U.S.C. § 2254(a). See Maleng, 490 U.S. at 491 (“We have never held . . . 

that a habeas petitioner may be ‘in custody’ under a conviction when the sentence 

imposed for that conviction has fully expired at the time his petition is filed.” (emphasis in 

original)). Because Petitioner was not “in custody” pursuant to his conviction in CR21-

9105 when he filed his current petition, the Court lacks subject matter jurisdiction over 

this habeas proceeding. See Weaver, 925 F.2d at 1099 (A “district court lacks subjectmatter jurisdiction” if the “petitioner does not satisfy the custody requirement.”); see also

3

In a civil matter filed by Petitioner that is currently before this Court, on February 24, 2023, Plaintiff 

informed the Court that he was to be sentenced in CR22-350 on February 22, 2023, and that he anticipated 

being transferred from the Lancaster County Jail where he was currently housed to another facility after 

sentencing was complete. See case number 8:22-cv-409, Filing No. 24 at 1–2. In a second filing dated 

March 16, 2023, Petitioner notified the Court he had been transferred to a facility in Lincoln, Nebraska, 

operated by the Nebraska Department of Correctional Services. See case number 8:22-cv-409, Filing No. 

30 at 1.

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Love v. Tippy, 128 F.3d 1258, 1258–59 (8th Cir. 1997) (per curiam); Charlton v. Morris, 

53 F.3d 929, 929 (8th Cir. 1995) (per curiam), cert. denied, 516 U.S. 926 (1995); Miles v. 

Maschener, 175 F.3d 1025 (8th Cir. 1999) (per curiam) (unpublished) (Table Decision).

The Court is also mindful that there may be other “collateral consequences” 

attributable to Petitioner’s conviction in CR21-9105, such as possible sentence 

enhancements on later convictions, the inability to vote, engage in certain businesses, 

hold public office, or serve as a juror. See Maleng, 490 U.S. at 491–92; Carafas, 391 

U.S. at 237. It is well-settled, however, that such collateral consequences alone do not 

satisfy the statutory “in custody” requirement of the federal habeas corpus statute. As the 

Supreme Court explained in Maleng, “once the sentence imposed for a conviction has 

completely expired, the collateral consequences of that conviction are not themselves 

sufficient to render an individual ‘in custody’ for purposes of a habeas attack upon it.” 490 

U.S. at 492. Therefore, even though Petitioner might have experienced, might still be 

experiencing, or might experience in the future, some adverse consequences from his 

conviction in CR21-9105, those collateral consequences do not cause him to currently be 

“in custody” in CR21-9105 for purposes of § 2254(a). See id.

In sum, because Petitioner was no longer serving his sentence for his conviction 

in CR21-9105 when he filed this Petition, he cannot satisfy the “in custody” prerequisite 

for seeking federal habeas corpus review of that conviction. Accordingly, this Court lacks 

jurisdiction over this case and will dismiss the Petition without prejudice. See Love, 128 

F.3d at 1258–59; Charlton, 53 F.3d at 929; Miles, 175 F.3d 1025.

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. 

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§ 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, 484–85 

(2000). The Court has applied the appropriate standard and determined that Petitioner is 

not entitled to a certificate of appealability.

IT IS THEREFORE ORDERED that:

1. The Petition for writ of habeas corpus, Filing No. 1, is dismissed without 

prejudice for lack of jurisdiction. No certificate of appealability has been or will be issued.

2. A judgment will be entered by separate document.

3. Based on the dismissal of the Petition, Petitioner’s motions for evidentiary 

hearing, Filing No. 2, and motion seeking appointment of counsel, Filing No. 3, are denied 

as moot.

Dated this 5th day of May, 2023.

BY THE COURT:

Joseph F. Bataillon

Senior United States District Judge

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