Davis v. Hobbs

Filing 43

ORDER denying 42 motion for reconsideration. Signed by Judge Susan Webber Wright on 5/12/2014. (mmd)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

KELVIN LYNN DAVIS, JR.

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vs.
RAY HOBBS, Director,
Arkansas Department of Correction

No. 5:11CV00074 SWW

Order
Before the Court is a motion to recall Order denying Motion for Relief from Judgment
Pursuant to Rule 60(b). The motion is denied.
In 2007, petitioner Kelvin Lynn Davis was convicted of capital murder and sentenced to
life imprisonment without the possibility of parole. The appeal of his conviction and sentence
was unsuccessful, see Davis v. State, 291 S.W.3d 164 (Ark. 2009), and the state trial court
denied his subsequent petition for post-conviction relief pursuant to Arkansas Rule of Criminal
Procedure 37.
Petitioner filed his first petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in
March 2011, alleging ineffective assistance of counsel. The Court denied the petition, finding he
procedurally defaulted all his claims for relief. On July 2, 2013, petitioner attempted to
challenge his conviction again by filing a Motion for Relief from Judgment Pursuant to Rule
60(b). The Court denied the motion, stating petitioner must follow the procedure set forth in 28
U.S.C. § 2244 in order to file a successive petition. Now petitioner asks the Court to reconsider
its order denying his Rule 60(b) motion, arguing that Sasser v. Hobbs, 735 F.3d 833 (8th Cir.
2013) may allow him to raise his otherwise procedurally-defaulted claims.

The filing of a second or successive petition is governed by 28 U.S.C. § 2244(b)(3)(A).
It provides: “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.” The Court finds petitioner’s motion
amounts to a successive collateral attack and should be dismissed for failure to obtain prior
authorization from the Court of Appeals. See Boyd v. United States, 304 F.3d 813, 814 (8th Cir.
2002).
IT IS THEREFORE ORDERED that petitioner’s motion [ECF No. 42] is denied.
DATED this 12th day of May, 2014.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

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