McGee v. Houston
Filing
12
MEMORANDUM AND ORDER - McGhee's Petition is 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. 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)(GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ERIC MCGHEE,
Petitioner,
v.
ROBERT HOUSTON,
Respondent.
)
)
)
)
)
)
)
)
)
CASE NO. 4:13CV3084
MEMORANDUM
AND ORDER
I. INITIAL REVIEW
This matter is before the court on initial review of Petitioner Eric McGhee’s
(“McGhee” or “Petitioner”) Petition for Writ of Habeas Corpus (“Petition”). (Filing No. 1.)
The court will dismiss McGhee’s Petition because it is a second or successive habeas
corpus petition that has 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 McGhee’s Petition is successive. He challenges his
2006 conviction for first degree murder and use of a deadly weapon to commit a felony.
(Filing No. 1 at CM/ECF p. 3.) Petitioner unsuccessfully challenged this same conviction
in earlier federal habeas corpus litigation.
(See McGhee v. Houston, Case No.
4:11CV3224 (D. Neb.), Filing No. 10, dismissing petition for writ of habeas corpus with
prejudice on April 2, 2012).)
The pending Petition is a second or successive petition under the statute because
it challenges the same 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
2
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, McGhee 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 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:
1.
McGhee’s Petition is dismissed without prejudice to reassertion of a
subsequent petition upon authorization by the Eighth Circuit Court of Appeals.
2.
3.
and Order.
The court will not issue a certificate of appealability in this matter.
A separate judgment will be entered in accordance with this Memorandum
DATED this 18th day of December, 2013.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
*This opinion may contain hyperlinks to other documents or Web sites. The U.S.
District Court for the District of Nebraska does not endorse, recommend, approve, or
guarantee any third parties or the services or products they provide on their Web sites.
Likewise, the court has no agreements with any of these third parties or their Web sites.
The court accepts no responsibility for the availability or functionality of any hyperlink.
Thus, the fact that a hyperlink ceases to work or directs the user to some other site does
not affect the opinion of the court.
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?