Hernandez v. State of Nebraska

Filing 26

MEMORANDUM AND ORDER that Hernandez's Petition and Amended Petition are dismissed without prejudice to reassertion of a subsequent petition upon authorization by the Eighth Circuit Court of Appeals. The Court will not issue a certificate of appealability in this matter. The 24 Motion for Leave is denied as moot. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party) (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL A. HERNANDEZ,
Petitioner,
v.
STATE OF NEBRASKA, ROBERT
P. HOUSTON, Director, FRED
BRITTEN, Warden, TECUMSEH
STATE CORRECTIONAL
INSTITUTE, and ATTORNEY
GENERAL OF THE STATE OF
NEBRASKA,
Respondents.

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4:13CV3004

MEMORANDUM
AND ORDER

I. INITIAL REVIEW
This matter is before the court on initial review of Petitioner Michael
Hernandez’s (“Hernandez” or “Petitioner”) Petition for Writ of Habeas Corpus
(“Petition”) and Amended Petition for Writ of Habeas Corpus (“Amended Petition”)
filed pursuant to 28 U.S.C. § 2254. (Filing Nos. 1 and 10.) The court will dismiss
Hernandez’s Petition and Amended Petition because they are second or successive
habeas corpus petitions that have 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(b), 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.
In Magwood v. Patterson, 130 S. Ct. 2788 (2010), the United States Supreme Court
held that “the phrase ‘second or successive’ must be interpreted with respect to the
judgment challenged.” Id. at 2797. In other words, the phrase “second or successive”
applies to entire habeas petitions, and not to individual claims in those petitions. Id.
at 2798.
This Court’s records reflect that Hernandez’s Petition is his second in this Court
challenging the same judgment. He challenges the conviction for distribution of a
controlled substance obtained in the Box Butte County District Court on February 9,
2006. (See Filing No. 10 at CM/ECF p. 1.) Petitioner unsuccessfully challenged this
same Box Butte County conviction in earlier federal habeas corpus litigation.

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(See Hernandez v. Houston, et al., Case No. 4:09CV3070 (D. Neb.) (dismissing
petition with prejudice on December 22, 2009).)
The pending Petition and Amended Petition are second or successive petitions
under the statute because they challenge the same Box Butte County conviction and
sentence already challenged in this court. The record does not reflect that Petitioner
has received permission from the Eighth Circuit Court of Appeals to again attack this
conviction. If Petitioner wishes to continue to pursue this matter, he should file a
motion with the Eighth Circuit Court of Appeals fully addressing the legal
requirements for successive habeas petitions set forth in 28 U.S.C. § 2244(b).
II. CERTIFICATE OF APPEALABILITY
A petitioner cannot appeal an adverse ruling of his petition for writ of habeas
corpus under § 2254 unless he is granted a certificate of appealability. 28 U.S.C.
§ 2253(c)(1); Fed. R. App. P. 22(b)(1). A certificate of appealability cannot be granted
unless the petitioner “has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). To make such a showing, “[t]he petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. Daniel, 529 U.S. 473, 484 (2000).
In this case, Hernandez has failed to make a substantial showing of the denial
of a constitutional right. The Court is not persuaded that the issues raised in the
Petition and Amended Petition are debatable among reasonable jurists, that a court
could resolve the issues differently, or that the issues deserve further proceedings.
Accordingly, the Court will not issue a certificate of appealability in this case.

IT IS THEREFORE ORDERED that:
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1.
Hernandez’s Petition and Amended Petition are dismissed without
prejudice to reassertion of a subsequent petition upon authorization by the Eighth
Circuit Court of Appeals.
2.

The Court will not issue a certificate of appealability in this matter.

3.
Hernandez’s “Motion for Leave to Amend Habeas Affidavit” (Filing No.
24) is denied as moot.
4.
A separate judgment will be entered in accordance with this Memorandum
and Order.
DATED this 16th day of May, 2013.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide
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accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to
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