Honken v. United States of America

Filing 39

ORDER re 9 Stipulation Joint Scheduling Order filed by Dustin Lee Honken: The parties are directed to comply with the page limitations that are set forth above. The movant's 20th claim and 21st claim are dismissed. The movant's a ttorneys are directed to consult with the Federal Bureau of Prisons to make sure that the movant is available during the 10/31/2011 to 11/04/2011 hearing period (see text of Order for details). Signed by Chief Judge Linda R Reade on 09/12/2011. (skm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION

DUSTIN LEE HONKEN,
Movant,

No. C10-3074-LRR
No. CR01-3047-LRR

vs.
UNITED STATES OF AMERICA.

ORDER

____________________________
This matter appears before the court on the scheduling order that Dustin Lee
Honken (“the movant”) and the government filed on January 5, 2011.
The movant’s pre-hearing brief is due on September 15, 2011 and the government’s
pre-hearing brief is due on September 30, 2011. Additionally, the movant’s post-hearing
brief is due on December 5, 2011, the government’s post-hearing brief is due on January
5, 2012 and the movant’s post-hearing reply brief is due on February 17, 2012. In light
of the extensive briefs that the parties have already submitted, the court deems it
appropriate to set a page limit for the additional briefs that the parties are required to
submit. The parties’ pre-hearing briefs are limited to 50 pages, the parties’ post-hearing
briefs are limited to 80 pages and the movant’s post-hearing reply brief is limited to 40
pages.
Further, the parties need not brief any further either the movant’s cumulative error
claim or the movant’s manner of execution claim. With respect to the former claim, it is
clear in the Eighth Circuit that an error must establish on its own that relief is warranted.
See United States v. Brown, 528 F.3d 1030, 1034 (8th Cir. 2008) (citing Middleton v.
Roper, 455 F.3d 838, 851 (8th Cir. 2006)); Hall v. Luebbers, 296 F.3d 685, 692 (8th Cir.

2002) (citing Wainwright v. Lockhart, 80 F.3d 1226, 1233 (8th Cir. 1996)).
Consequently, the movant is unable to rely on a cumulative error theory in order to obtain
relief under 28 U.S.C. § 2255. Id. Concerning the latter claim, the parties agree that it
is not ripe. In addition, the court concludes that it lacks jurisdiction to consider an attack
on the manner of execution. See Gravink v. United States, 549 F.2d 1152, 1153-54 (8th
Cir. 1977) (concluding that a manner of execution claim is not cognizable under 28 U.S.C.
§ 2255 and such claim is properly asserted under 28 U.S.C. § 2241 in the district where
the movant is in custody). Based on the foregoing, the court deems it appropriate to
dismiss the movant’s 20th claim and 21st claim.
Lastly, the court deems it appropriate to notify the parties that it considered the
benefits associated with having the movant present during his hearing and the safety and
security concerns that the movant’s presence raises. In light of the record, the court finds
that the movant’s presence during the October 31, 2011 to November 4, 2011 hearing is
not required or necessary. The court will not order the United States Marshal to provide
for the movant’s personal appearance at the hearing. If he elects to testify during his
hearing, the movant may do so by telephone conference or video conference through the
Federal Bureau of Prisons.
IT IS THEREFORE ORDERED:
(1)

The parties are directed to comply with the page limitations that are set forth
above.

(2)

The movant’s 20th claim and 21st claim are dismissed.

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(3)

The movant’s attorneys are directed to consult with the Federal Bureau of
Prisons to make sure that the movant is available during the October 31,
2011 to November 4, 2011 hearing period.

DATED this 12th day of September, 2011.

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