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Kettle v. Frakes

United States District Court, D. Nebraska

July 28, 2016

BYRON K. RED KETTLE, Petitioner,
v.
SCOTT FRAKES, Respondent.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the court on Petitioner’s Amended Petition for Writ of Habeas Corpus (“petition”). (Filing No. 80.) Respondent argues that the petition is barred by the limitations period set forth in 28 U.S.C. § 2244(d). The court agrees and will dismiss the petition with prejudice.[1]

         I. BACKGROUND

         The petition in this case relates to convictions and sentences Petitioner received as a result of events occurring in South Dakota and Nebraska in 1987. To summarize, on September 30, 1987, Petitioner robbed a ConoMart Store in Box Elder, South Dakota and kidnapped the store clerk. Petitioner took the store clerk to Sheridan County, Nebraska, where he sexually assaulted her. State v. Red Kettle, 239 Neb. 317, 476 N.W.2d 220 (1991).

         On April 1, 1988, Petitioner pled guilty to one count of kidnapping in the United States District Court for the District of South Dakota. See Red Kettle, Case No. 8:11CV264 at Filing No. 12-2. He was sentenced to life in prison on that conviction. Id. Thereafter, Petitioner pled guilty to one count of kidnapping and one count of assault for the same conduct in South Dakota state court. The South Dakota state court sentenced Petitioner to life in prison for the kidnapping conviction and 30 years in prison on the assault conviction. See State v. Red Kettle, 452 N.W.2d 774 (S.D. 1990).

         On April 11, 1990, a Nebraska jury convicted Petitioner of first degree sexual assault (“Count I”), operating a motor vehicle to avoid arrest (“Count II”), and receiving or retaining stolen property (“Count III”) for the events occurring in Nebraska. The District Court of Sheridan County, Nebraska sentenced Petitioner to 15 to 25 years on Count I, to be served consecutively with any federal or South Dakota sentence, and 1-3 years each of Counts II and III, to be served consecutive to Court I and concurrent with each other. Petitioner appealed his Nebraska conviction, and it was affirmed by the Nebraska Supreme Court on October 25, 1991. See State v. Red Kettle, 239 Neb. 317, 476 N.W.2d 220 (1991).

         Petitioner was released from his federal sentence on June 13, 2009, and began serving his Nebraska state sentence on that date. Red Kettle, Case No. 8:11CV264 at Filing No. 12.

         On August 2, 2011, Petitioner filed a petition for writ of habeas corpus in this court under 28 U.S.C. § 2241. Red Kettle, Case No. 8:11CV264 at Filing No. 1. Petitioner claimed that he was being held illegally by the State of Nebraska and was entitled to credit on his sentence for the time he spent in federal custody. The court dismissed the petition on February 9, 2012, [2] finding that Petitioner did not have a liberty interest in the concurrent running of his federal, South Dakota, and Nebraska convictions. In dismissing the action, the court noted that the parties had not addressed whether the habeas petition was barred by the statute of limitations. Red Kettle, Case No. 8:11CV264 at Filing No. 30. However, because the record was adequate, the court was able to decide the matter on its merits. Id.

         Petitioner did not file a motion for post-conviction relief in state court until September 4, 2012. (Filing No. 98-2.) The motion was dismissed by the state court as untimely and procedurally barred. (Filing No. 98-3.) Petitioner’s appeal of the denial of the motion for post-conviction relief was dismissed. (Filing Nos. 97-1, 98-1.)

         II. DISCUSSION

         1.Motion to Amend Petition

         This action was initiated on June 3, 2013, and since that time, Petitioner has attempted to amend his petition on multiple occasions. On October 20, 2015, the court noted that Petitioner had a “tendency to routinely file supplements, amended petitions, and motions seeking to amend his claims” and that those filings frustrated the court’s ability to manage and progress the case. (Filing No. 78 at CM/ECF pp. 4-5.) As a result, the court provided Petitioner one final opportunity to file an amended petition that “incorporat[ed] all of his claims for relief.” (Id.) The Amended Petition was filed on November 2, 2015 (Filing No. 80) and remains the operative pleading in this case. (Filing No. 94.)

         Petitioner has not identified any legitimate reason necessitating further amendment of the pleadings. Therefore, Petitioner’s Motion to Amend Petition (Filing No. 103) will be denied.

         2.Statute ...


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