Kane v. Iowa Supreme Court

Filing 4

ORDER re 1 Petition for Writ of Habeas Corpus filed by Thomas Kane. The petitioners application for a writ of habeas corpus is dismissed without prejudice. The petitioners 2 application to proceed in forma pauperis isdenied as moot. The petitioners 3 application for appointment of counsel is denied as moot. Signed by Judge Mark W Bennett on 7/9/13. (copy w/nef mailed to petitioner) (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
THOMAS KANE,
Petitioner,

No. C13-4042-MWB

vs.
IOWA SUPREME COURT,

ORDER

Respondent.
____________________________
The matter before the court is the petitioner’s writ of mandamus, which the clerk’s
office properly construed as an application for a writ of habeas corpus.1 The petitioner
filed such application on May 9, 2013. Also before the court is the petitioner’s application
to proceed in forma pauperis and application for appointment of counsel. The petitioner
filed those applications on May 30, 2013.
The petitioner previously sought an application for a writ of habeas corpus in the
United States District Court for the Southern District of Iowa, that is, the district where
he is confined and the district where he was convicted. And, on at least two occasions,
see Kane v. State of Iowa, Case # 4:00-cv-10547-REL (S.D. Iowa 2000); Kane v. State
of Iowa, Case # 4:97-cv-90496 (S.D. Iowa 1997), the United States District Court for the
Southern District of Iowa informed the petitioner that he is unable to challenge his firstdegree murder conviction and life sentence unless he receives permission to file a second

1

A writ of mandamus is a writ issued by a superior court to compel a lower court
or a government officer to perform mandatory or purely ministerial duties correctly. The
district courts of the federal judiciary are separate from the courts of the State of Iowa.
Therefore, the court is unable to grant a writ of mandamus with respect to the Iowa
Supreme Court.

or successive application for a writ of habeas corpus. See 28 U.S.C. § 2244(b)(3)(A).2
Rather than transfer the petitioner’s application for a writ of habeas corpus to the United
States District Court for the Southern District of Iowa, the court shall dismiss without
prejudice the petitioner’s application for a writ of habeas corpus and shall deny as moot
the petitioner’s application to proceed in forma pauperis and application for appointment
of counsel.
IT IS THEREFORE ORDERED:
(1) The petitioner’s application for a writ of habeas corpus (docket no. 1) is
dismissed without prejudice.
(2) The petitioner’s application to proceed in forma pauperis (docket no. 2) is
denied as moot.
(3) The petitioner’s application for appointment of counsel (docket no. 3) is denied
as moot.
DATED this 9th day of July, 2013.

__________________________________

MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

2

28 U.S.C. § 2244(b)(3)(A) 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.
2