Nesbitt v. Frakes

Filing 9

MEMORANDUM AND ORDER - that the petition for writ of habeas corpus is denied anddismissed. No certificate of appealability has been or will be issued. If Nesbitt attempts to appeal this matter, I herewith certify that any appeal is not taken in good faith. Judgment will be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
THOMAS NESBITT,
Petitioner,
v.
SCOTT FRAKES,
Respondent.

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4:18CV3057

MEMORANDUM AND ORDER

Mr. Nesbitt, an inmate in the custody of the State of Nebraska, has brought a
habeas corpus action. He styles his petition as one brought under § 2241. I construe the
petition under the provisions of 28 U.S.C. § 2241(c)(3). I conduct an initial review of
the petition under 28 U.S.C. § 2243. Moreover, Rule 1(b) of the Rules Governing
Section 2254 Cases in the United States District Courts allows me to apply Rule 4 of
those rules to a section 2241 petition. I now dismiss this matter.
Nesbitt has been here many times before. He lost his initial attack on his
conviction and life sentence for murder. Nesbitt v. Hopkins, 907 F. Supp. 1317, 1319 (D.
Neb. 1995), aff'd, 86 F.3d 118 (8th Cir. 1996) (holding that: (1) petitioner was not put
twice in jeopardy by state's first-degree premeditated murder prosecution after directed
verdict was entered on felony murder count; (2) first-degree premeditated murder and
felony murder were not same offense; and (3) state court's denial of petitioner's request
for postconviction bail did not deprive him of due process.) Subsequently, he was
bounced at least twice before for filing a successive petition without making the required
showing or obtaining authorization from the Eighth Circuit Court of Appeals, and the
Court of Appeals has affirmed those denials. See Nesbitt v. Houston, 4:10CV3099;
Nesbitt v. Houston, 8:13CV075.
The petition rambles but essentially challenges this Court’s prior decisions and
the Court of Appeals’ prior decisions. The petition is successive and no permission has

been granted by the Court of Appeals to file a successive petition. 28 U.S.C. § 2244
(b)(1). (Emphasis added.) See Gonzalez v. Crosby, 545 U.S. 524, 530 (2005) (Under
provision of Antiterrorism and Effective Death Penalty Act (AEDPA) governing second
or successive habeas petitions, if the claim presented in the second or successive petition
was also presented in the prior petition, the claim must be dismissed.)
Even if Nesbitt could somehow avoid the bar of § 2244 (b)(1), he would be
required to seek the permission of the Court of Appeals to commence this second action.
28 U.S.C. § 2444 (b)(2) & (3)(A). He has not done so, and this matter must be dismissed
on that basis as well. Burton v. Stewart, 549 U.S. 147, 152 (2007) (the district court
lacked jurisdiction to entertain habeas petition since prisoner did not obtain order
authorizing him to file second petition).
Although Nesbitt sought relief under 28 U.S.C. § 2241, he must obtain a
certificate of appealability if he wishes to appeal. See 28 U.S.C. § 2253; Fed. R. App.
P. 22(b)(1); Rule 1(b) and Rule 11(a) of the Rules Governing Section 2254 Cases in the
United States District Courts. The standards for certificates (1) where the district court
reaches the merits or (2) where the district court rules on procedural grounds are set
forth in Slack v. McDaniel, 529 U.S. 473, 484-485 (2000). I have applied the appropriate
standard and determined that Petitioner is not entitled to a certificate of appealability.
IT IS ORDERED that the petition for writ of habeas corpus is denied and
dismissed. No certificate of appealability has been or will be issued. If Nesbitt attempts
to appeal this matter, I herewith certify that any appeal is not taken in good faith.
Judgment will be entered by separate document.
DATED this 30th day of May, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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