United States District Court, D. Nebraska
MEMORANDUM AND ORDER
LAURIE SMITH CAMP, Chief District Judge.
This matter is before the Court on Respondents' Motion to Dismiss (Filing No. 21). Respondents argue Petitioner Richard Rayes's Petition for Writ of Habeas Corpus should be dismissed because it is a second or successive habeas corpus petition that has not been authorized by the Eighth Circuit Court of Appeals. For the reasons that follow, the Court will deny Respondents' motion.
I. STANDARD OF REVIEW
The statutory prohibition against successive petitions by state prisoners is codified in 28 U.S.C. § 2244, 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.
28 U.S.C. § 2244(b). In Magwood v. Patterson, 561 U.S. 320, 333 (2010), the United States Supreme Court held that "the phrase second or successive' must be interpreted with respect to the judgment challenged." Id. at 333. In other words, the phrase "second or successive" applies to entire habeas petitions, and not to individual claims in those petitions.
Respondents argue Petitioner's habeas corpus petition is successive "because [Petitioner's] prior petition for habeas relief was denied at Rayes v. Hopkins, 4:98cv3385." (Filing No. 21 at ECF 2.) Respondents do not discuss Petitioner's claims or explain why they are successive to those raised in Case Number 4:98CV3385. Rather, Respondents explain in a footnote that the records in Case Number 4:98CV3385 "are not available online and the records held by the Nebraska Attorney General's Office regarding [Petitioner's] convictions, appeals, and habeas petitions have long since been destroyed." ( Id. )
The docket sheet in Case Number 4:98CV3385 reflects that the documents in the case are now available for viewing on CM/ECF. In Case Number 4:98CV3385, Petitioner challenged a judgment of conviction dated April 21, 1981, for kidnapping. (Case No. 4:98CV3385, Filing No. 1 at ECF 1.) In the habeas corpus petition at issue here, Petitioner challenges the loss of good-time credits and also a 1998 judgment of conviction for arson. ( See Filing No. 18 at ECF 1-2, court's summary of Petitioner's claims.) Respondents' Motion to Dismiss fails to set forth how ...