United States District Court, D. Nebraska
BYRON K. RED KETTLE, Petitioner,
MICHAEL L. KENNY, Director, Nebraska Department of Correctional Services, Respondent.
LYLE E. STROM, Senior District Judge.
I. MOTION TO DISMISS
This matter is before the Court on a Motion to Dismiss filed by Respondent (Filing No. 30). The Court will dismiss Red Kettle's Petition for Writ of Habeas Corpus because it is a second or successive habeas corpus petition that has not been authorized by the Eighth Circuit Court of Appeals.
The statutory prohibition against successive petitions by state prisoners is codified in 28 U.S.C. § 2244(b), which provides in relevant part:
(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless -
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
(3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.
In Magwood v. Patterson , 130 S.Ct. 2788 (2010), the United States Supreme Court held that "the phrase second or successive' must be interpreted with respect to the judgment challenged." Id. at 2797. In other words, the phrase "second or successive" applies to entire habeas petitions, and not to individual claims in those petitions. Id. at 2798.
This Court's records reflect that Red Kettle's Petition is successive. He challenges his conviction in the District Court of Sheridan County for first degree sexual assault, operating a motor vehicle to avoid arrest, and receiving or retaining stolen property. (Filing No. 18 at CM/ECF p. 1.) Petitioner unsuccessfully challenged this same conviction in earlier federal habeas corpus litigation. ( See Red Kettle v. Houston, Case No. 8:11CV264 (D. Neb.), Filing No. 30, dismissing petition for writ of habeas corpus with prejudice on February 9, 2012.)
The pending petition is a second or successive petition under the statute because it challenges the same conviction and sentence already challenged in this Court. The record does not reflect that petitioner has received permission from the Eighth Circuit Court of Appeals to again attack this conviction. If petitioner wishes to continue to pursue this matter, he should file a motion with the Eighth Circuit Court of ...