United States District Court, D. Nebraska
JEREMY L. JOHNSON, Petitioner,
SCOT FRAKES, Director; and BRAD HANSEN, Warden; Respondents.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
matter is before the court on initial review of Petitioner
Jeremy L. Johnson's Petition for Writ of Habeas Corpus.
(Filing No. 1.) The court will dismiss the petition
because it is a second or successive habeas corpus petition
that has not been authorized by the Eighth Circuit Court of
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
(B)(i) the factual predicate for the claim could not have
been discovered previously through the exercise of due
(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).
Magwood v. Patterson, 561 U.S. 320, 332-33 (2010),
the United States Supreme Court held that “the phrase
‘second or successive' must be interpreted with
respect to the judgment challenged.” In other words,
the phrase “second or successive” applies to
entire habeas petitions, and not to individual claims in
those petitions. Id.
court's records reflect that Johnson's petition is
successive. He challenges his 1997 convictions in the
District Court of Douglas County, Nebraska for felon in
possession of a deadly weapon, felony flight to avoid arrest,
two counts of unlawful discharge of a firearm into an
occupied dwelling, and use of a deadly weapon to commit a
felony. Johnson unsuccessfully challenged these same
convictions in earlier federal habeas corpus litigation.
(See Johnson v. Houston, Case No. 4:05CV3111, Filing
No. 30 (dismissing petition with prejudice).
pending petition is a second or successive petition under the
statute because it challenges the same judgment already
challenged in this court. Moreover, the petition does not fit
any of the recognized exceptions to the bar on second or
successive petitions. The record does not reflect that Johnson
has received permission from the Eighth Circuit Court of
Appeals to again attack these convictions. If he wishes to
continue to pursue this matter, he should file a motion with
the Eighth ...