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Johnson v. Frakes

United States District Court, D. Nebraska

June 15, 2017

JEREMY L. JOHNSON, Petitioner,
v.
SCOT FRAKES, Director; and BRAD HANSEN, Warden; Respondents.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         I. INITIAL REVIEW

         This 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 Appeals.

         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, 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.

         This 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).

         The 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.[1] 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 ...


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