Decoteau v. Kenney

Filing 11

MEMORANDUM AND ORDER - Decoteau's Petition (Filing No. 6 ) 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; and 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)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHRISTOPHER DECOTEAU,
Petitioner,
v.
MICHAEL KENNEY,
Respondent.

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4:14CV3166

MEMORANDUM
AND ORDER

I. INITIAL REVIEW
This matter is before the Court on initial review of Petitioner Christopher Decoteau’s
(“Decoteau” or “Petitioner”) Petition for Writ of Habeas Corpus. (Filing No. 6.) The Court
will dismiss Decoteau’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, 561 U.S. 320, 332-33 (2010), the United States Supreme Court
held that “the phrase ‘second or successive’ must be interpreted with respect to the
judgment challenged.” In other words, the phrase “second or successive” applies to entire
habeas petitions, and not to individual claims in those petitions. Id.
This Court’s records reflect that Decoteau’s petition is successive. He challenges
his 2003 conviction in the District Court of Lancaster County, Nebraska, for manslaughter,
use of a weapon to commit a felony, fleeing to avoid arrest, and possession of a controlled
substance. (Filing No. 6 at ECF 1.) Decoteau unsuccessfully challenged this same
conviction in earlier federal habeas corpus litigation. (See Decoteau v. Sabatka-Rine,
Case No. 4:08CV3146 (D. Neb.), Filing No. 14, dismissing petition for writ of habeas
corpus with prejudice on October 14, 2008.)
The pending petition is a second or successive petition under the statute because
it challenges the same judgment already challenged in this Court. Moreover, the petition
does not fit any of the recognized exceptions to the bar on second or successive petitions.1

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The Supreme Court has recognized three exceptions to the Section 2244(b) restrictions on second
or successive applications where the prisoner challenged the same state-court judgment once before. First,
in Slack v. McDaniel, 529 U.S. 473 (2000), the Court held that the restrictions of Section 2244(b) do not apply
to a second application that followed an earlier application dismissed for lack of exhaustion. Magwood, 130
S.Ct. at 2706-97. Second, in Stewart v. Martinez–Villareal, 523 U.S. 637 (1998), it ruled that those restrictions
do not prohibit a second application where “the prisoner filed his first habeas application before his execution
date was set,” claiming incompetency to be executed under Ford v. Wainwright, 477 U.S. 399 (1986). Panetti
v. Quarterman, 551 U.S. 930, 944 (2007). Third, and similarly, the prohibition against an unauthorized second
application does not apply where such a Ford claim that would have been unripe had the petitioner presented

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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, Decoteau 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. Accordingly,

it in his first application is first filed in a subsequent petition. Panetti, 551 U.S. at 944 (“The statutory bar on
‘second or successive’ applications does not apply to a Ford claim brought in an application filed when the
claim is first ripe.”).

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IT IS ORDERED:
1.

Decoteau’s Petition (Filing No. 6) is 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; and

3.

A separate judgment will be entered in accordance with this Memorandum
and Order.

DATED this 10th day of October, 2014.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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