Campbell v. Gage
Filing
13
MEMORANDUM OPINION dismissing Campbell'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 Court will not issue a certificate of appealability in this case. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party) (JSF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HERBERT L. CAMPBELL,
)
)
Petitioner,
)
)
v.
)
)
BRIAN GAGE, et al.,
)
)
Respondent.
)
______________________________)
I.
4:13CV3164
MEMORANDUM OPINION
INITIAL REVIEW
This matter is before the court on initial review of
Petitioner Herbert Campbell’s (“Campbell” or “Petitioner”)
Petition for Writ of Habeas Corpus (“Petition”) (Filing No. 1).
The Court will dismiss Campbell’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 Campbell’s Petition
is successive.
He challenges his March 21, 2002, conviction for
robbery, kidnapping, and use of a weapon to commit a felony
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(Filing No. 1 at CM/ECF pp. 1-2).
Petitioner unsuccessfully
challenged this same conviction in earlier federal habeas corpus
litigation.
(See Campbell v. Houston, et al., Case No.
4:05CV3081 (D. Neb.), Filing No. 20, dismissing petition for writ
of habeas corpus with prejudice on November 2, 2005).)
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.
Fed. R. App. P. 22(b)(1).
28 U.S.C. § 2253(c)(1);
A certificate of appealability cannot
be granted unless the petitioner “has made a substantial showing
of the denial of a constitutional right.”
§ 2253(c)(2).
28 U.S.C.
To make such a showing, “[t]he petitioner must
demonstrate that reasonable jurists would find the district
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court’s assessment of the constitutional claims debatable or
wrong.”
Slack v. Daniel, 529 U.S. 473, 484 (2000).
In this case, Campbell 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.
A separate order will be entered
in accordance with this memorandum opinion.
DATED this 24th day of September, 2013.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court
* This opinion may contain hyperlinks to other documents or
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of the Court.
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