Harper v. Houston et al

Filing 20

MEMORANDUM AND ORDER denying 13 Motion to Dismiss; petitioner's objection to Motion for Summary Dismissal 16 is granted; All other pending motions are denied; Petitioner shall have until April 9, 2012, to either amend his Petition to dele te the successive claims (Parts 1 and 2 of his claim), or to seek authorization from the Eighth Circuit Court of Appeals to proceed on these successive claims; In the event that Petitioner takes no action by April 9, 2012, the court will dismiss Pa rts 1 and 2 of Petitioner's habeas claim and will progress this matter on the merits of Part 3 only; and The Clerk of the court is directed to set a pro se case management deadline in this matter with the following text: April 9, 2012: Deadline for Petitioner to amend petition or seek authorization on successive claims. 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
ERNEST C. HARPER,
Petitioner,
v.
ROBERT P. HOUSTON, Director
Nebraska Department of Corr., FRED
BRITTEN, Warden, Tecumseh
Correctional Inst., and NEBRASKA
DEPARTMENT OF CORRECTIONAL
SERVICES,
Respondents.

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CASE NO. 8:11CV324

MEMORANDUM
AND ORDER

Petitioner Ernest C. Harper (“Harper”) filed his Petition for Writ of Habeas Corpus
(“Petition”) on September 22, 2011. (Filing No. 1.) This matter is before the court on
Respondents’ Motion for Summary Dismissal. (Filing No. 13.) As set forth below,
Respondents’ Motion is denied.
I.

BACKGROUND

In 1982, a jury convicted Harper of one count of robbery, one count of use of a
firearm to commit a felony, and two counts of first degree sexual assault. State v. Harper,
340 N.W.2d 391, 392 (Neb. 1983).

The Douglas County, Nebraska District Court

thereafter sentenced Harper to serve 16 2/3-50 years on the robbery conviction, 6 2/3-20
years on the use of a firearm to commit a felony conviction, 10-20 years on the first sexual
assault conviction, and 16 2/3-50 years on the remaining sexual assault conviction. (Filing
No. 4 at CM/ECF p. 9.) Petitioner is currently in the custody of the Nebraska Department
of Correctional Services on these sentences. (Filing No. 1.) This matter is Petitioner’s fifth
petition for writ of habeas corpus filed in this court relating to this conviction and sentence.
(Filing No. 12-1, Attach. 1, at CM/ECF pp. 9-12.) As with his fourth petition for writ of
habeas corpus, Petitioner did not seek authorization from the Eighth Circuit prior to filing

the Petition in this matter. (Id. at CM/ECF p. 9; see also Docket Sheet.) On initial review,
the court summarized Harper’s claims as follows:
Petitioner was denied equal protection and due process of law in violation of
the Fourteenth Amendment because: (1) the trial court “failed to make a
truth in sentencing advisement” under Nebraska law; (2) the trial court failed
to grant credit to Petitioner for “time served”; and (3) Petitioner is currently
being denied “good time credit” under Nebraska law.
(Filing No. 11.)
II.
A.

ANALYSIS

Applicable Law

Rule 9 governing Section 2254 cases provides that:
Before presenting a second or successive petition, the petitioner must obtain
an order from the appropriate court of appeals authorizing the district court
to consider the petition as required by 28 U.S.C. § 2244(b)(3) and (4).
Id. Similarly, Section 2244(b)(3)(A) provides that:
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.
Id. The United States Supreme Court established a process for court of appeals’ review
of successive petitions:
In AEDPA, Congress established a “gatekeeping” mechanism for the
consideration of “second or successive habeas corpus applications” in the
federal courts. Felker v. Turpin, 518 U.S. 651, 657 ... (1996); § 2244(b). An
individual seeking to file a “second or successive” application must move in
the appropriate court of appeals for an order directing the district court to
consider his application. § 2244(b)(3)(A). The court of appeals then has 30
days to decide whether to grant the authorization to file. § 2244(b)(3)(D).
A court of appeals’ decision whether to grant authorization “to file a second
or successive application shall not be appealable and shall not be the subject
of a petition for rehearing or for a writ of certiorari.” §2244(b)(3)(E).
Stewart v. Martinez- Villareal, 523 U.S. 637, 641 (1998).

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In order for a petition to be considered “successive,” it must “contest[] the same
custody imposed by the same judgment of a state court.” Burton v. Stewart, 549 U.S. 147
(2007). If a petition is deemed successive, the district court lacks “jurisdiction to consider
it in the first place” and the district court must dismiss the petition. Id. However, dismissal
is not appropriate where a petitioner “asserts a new rule of constitutional law or raises new
facts that establish the petitioner’s innocence of the underlying offense.” Singleton v.
Norris, 319 F.3d 1018, 1023 (8th Cir. 2003); see also Stewart, 523 U.S. at 641. The
general bar against abusive or successive claims extends both to new claims which could
have been raised or developed in an earlier petition and to successive claims which raise
grounds identical to those heard and decided on the merits in a previous petition. See
Vancleave v. Norris, 150 F.3d 926, 929 (8th Cir. 1998).
However, where a petition for habeas corpus challenges “the execution of [a
petitioner’s] sentence [it] should not be deemed ‘second or successive’ merely because
he has previously filed a § 2254 challenge to the constitutionality of his convictions.”
Crouch v. Norris, 251 F.3d 720, 724 (8th Cir. 2001). Where a habeas corpus petition
challenges only the execution of a petitioner’s sentence but “does not threaten the validity
of [the underlying] conviction and sentence, which have already been subjected to both
state and federal review,” a habeas corpus petition is not successive. Id. at 724-25; see
also Sherrod v. Houston, No. 4:07CV3216, 2009 WL 484360, *2 (D. Neb. Feb. 23, 2009)
(finding habeas petition seeking to restore “good time credit” not barred as successive
under Crouch).

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B.

Respondents’ Motion to Dismiss

Respondents argue that the Petition is successive and should be dismissed
because Harper did not seek authorization from the Eighth Circuit prior to its filing. (Filing
No. 14.) Harper argues that the court should reach the merits of his Petition because he
is not asserting “a direct attack on the conviction and sentence” but is instead challenging
the “prison official[s’] . . . interpretation, computation, and calculation” of his sentence as
it relates to his “good time” credits. (Filing No. 19 at CM/ECF p. 2.)
The court has carefully reviewed the record in this matter and finds that Parts 1 and
2 of Harper’s habeas claim relate entirely to the constitutionality of Harper’s 1982
sentences and could have been raised in his previous habeas corpus petitions. (Filing No.
1.) As such, Parts 1 and 2 are successive. Harper has not asserted a new constitutional
rule or raised any new facts establishing his innocence as it relates to these two claims.
(Filing Nos. 15 and 16.) The court therefore lacks jurisdiction over Parts 1 and 2 because
Harper has not sought or received permission from the United States Court of Appeals for
the Eighth Circuit to file the successive claims.
Regarding Part 3 of Harper’s claim, the court finds that it relates only to the
execution of his sentence and does not challenge or otherwise threaten the validity of the
underlying sentence.1 Thus, Harper’s Petition is one of a “new breed of ‘mixed’ petition[s]
brought about as the result of the gatekeeping provisions” of AEDPA. Pennington v.
Norris, 257 F.3d 857, 858 (8th Cir. 2001). As set forth in Pennington, the court must
provide Harper “the option of seeking authorization” from the Eighth Circuit to proceed on

1

Importantly, Respondents do not argue, and nothing before the court shows, that
Harper has previously raised Part 3 of his habeas claim in a petition for writ of habeas
corpus. (Filing Nos. 14 and 18.)
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his successive claims, “or of amending his petition to delete those claims so he can
proceed” only with Part 3 of his habeas claim since that claim “require[s] no authorization.”
Id. at 859. As set forth below, the court will allow Harper this opportunity and will progress
this matter to final disposition on the merits after Harper has made his election.2
IT IS THEREFORE ORDERED that:
1.

Respondents’ Motion for Summary Dismissal (filing no. 13) is denied.
Petitioner’s Objection to Motion for Summary Dismissal (filing no. 16) is
granted. All other pending motions are denied;

2.

Petitioner shall have until April 9, 2012, to either amend his Petition to delete
the successive claims (Parts 1 and 2 of his claim), or to seek authorization
from the Eighth Circuit Court of Appeals to proceed on these successive
claims;

3.

In the event that Petitioner takes no action by April 9, 2012, the court will
dismiss Parts 1 and 2 of Petitioner’s habeas claim and will progress this
matter on the merits of Part 3 only; and

4.

The Clerk of the court is directed to set a pro se case management deadline
in this matter with the following text: April 9, 2012: Deadline for Petitioner to
amend petition or seek authorization on successive claims.

DATED this 9th day of March, 2012.
BY THE COURT:

s/Laurie Smith Camp
United States District Judge

2

Nothing in this Memorandum and Order shall be construed to bar Respondents
from asserting any other defense to Harper’s claims such as failure to exhaust, procedural
default, or that Harper’s claims are barred by the applicable statute of limitations.

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Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third
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