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Diamantopoulos v. Hanson

United States District Court, D. Nebraska

October 28, 2019

GEORGIOS N. DIAMANTOPOULOS, Petitioner,
v.
BRAD HANSON, Warden; and SCOTT FRAKES, Director; Respondents.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge.

         This matter is before the court on initial review of Petitioner Georgios N. Diamantopoulos' (“Petitioner”) Amended Petition for Writ of Habeas Corpus (filing no. 11)[1] brought pursuant to 28 U.S.C. § 2254. 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.

         I. BACKGROUND

         Petitioner is serving a life sentence for first-degree murder, and he is in the custody of the Nebraska Department of Correctional Services. (See Filing No. 4; Docket Sheet.) This matter is Petitioner's tenth 28 U.S.C. § 2254 petition for writ of habeas corpus filed in this court challenging his conviction and sentence. See Diamantopoulos v. Nebraska, 8:11cv431 (Kopf, J.) (dismissing Petitioner's ninth § 2254 petition on February 22, 2012, as successive pursuant to 28 U.S.C. § 2244(b)(3)(A)); Diamantopoulos v. Nebraska, et al., 8:11cv406 (Urbom, J.) (dismissing Petitioner's eighth § 2254 petition on February 14, 2012, as successive pursuant to 28 U.S.C. § 2244(b)(3)(A)); Diamantopoulos v. Venditte, et al., 4:10cv3079 (Smith Camp, J.) (dismissing Petitioner's seventh § 2254 petition on June 2, 2010, as successive pursuant to 28 U.S.C. § 2244(b)(3)(A)); Diamantopoulos v. Nebraska, et al., 4:07cv3191 (Strom, J.) (dismissing Petitioner's sixth § 2254 petition on December 10, 2007, as a successive petition pursuant to 28 U.S.C. § 2244(b)(3)(A)); Diamantopoulos v. Nebraska, et al., 4:01cv3287 (Kopf, J.) (dismissing Petitioner's fifth § 2254 petition on September 3, 2002, as successive pursuant to 28 U.S.C. § 2244(b)(3)(A)); Diamantopoulos v. Nebraska Dep't of Corr., et al., 4:98cv3262 (Urbom, J.) (dismissing Petitioner's fourth § 2254 petition on October 14, 1998, as a successive petition pursuant to 28 U.S.C. § 2244(b)(3)(A)); Rehbein v. Clarke, 94 F.3d 478 (8th Cir. 1996), aff'g855 F.Supp. 1066 (D. Neb. 1994) (affirming dismissal of Petitioner's third petition for writ of habeas corpus under principles concerning “abuse of the writ” before enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)).

         II. DISCUSSION

         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. If a petition is deemed successive, the district court lacks “jurisdiction to consider it in the first place, ” and the district court must dismiss the petition. Burton v. Stewart, 549 U.S. 147, 152 (2007). However, dismissal is not appropriate where a petitioner “asserts a new rule of constitutional law or raises new facts that establish the petitioner's innocence of the underlying offense.” Singleton v. Norris, 319 F.3d 1018, 1023 (8th Cir. 2003); see alsoStewart v. Martinez-Villareal, 523 U.S. 637, 641 (1998). The general bar against abusive or successive claims extends both ...


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