Red Kettle v. Scott Frakes

Filing 119

MEMORANDUM AND ORDER that this matter is dismissed with prejudice, and a separate judgment will be entered in accordance with this Memorandum and Order. The court will not issue a certificate of appealability in this matter. Petitioner's Mot ion to Amend Petition (Filing No. 103 ) is denied. Petitioner's Motion for Leave of Court (Filing No. 104 ) is denied as moot. Petitioner's Objection and Summary Judgment (Filing No. 106 ) is denied as moot. Petitioner's Object ion and Summary Judgment (Filing No. 106 ) is denied as moot. Petitioner's Request for Records (Filing No. 108 ) is denied as moot. Petitioner's Motion for Evidentiary Hearing (Filing No. 109 ) is denied as moot. Petitioner's Motion for Order of Recognizance (Filing No. 113 ) is denied as moot. Petitioner's Motion for Judicial Notice (Filing No. 114 ) is denied as moot. Petitioner's Motion for Notice (Filing No. 115 ) is denied as moot. Petitioner's Mo tion to Strike (Filing No. 116 ) is denied as moot. Petitioner's Supplemental Pleading for Recognizance (Filing No. 117 ) is denied as moot. Petitioner's Supplemental Pleading and Notice (Filing No. 118 ) is denied as moot. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BYRON K. RED KETTLE,
Petitioner,
V.
SCOTT FRAKES,
Respondent.

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8:13CV171

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner’s Amended Petition for Writ of
Habeas Corpus (“petition”).

(Filing No. 80.)

Respondent argues that the petition is

barred by the limitations period set forth in 28 U.S.C. § 2244(d). The court agrees and
will dismiss the petition with prejudice.1
I. BACKGROUND
The petition in this case relates to convictions and sentences Petitioner received
as a result of events occurring in South Dakota and Nebraska in 1987. To summarize, on
September 30, 1987, Petitioner robbed a ConoMart Store in Box Elder, South Dakota
and kidnapped the store clerk.

Petitioner took the store clerk to Sheridan County,

Nebraska, where he sexually assaulted her.

State v. Red Kettle, 239 Neb. 317, 476

N.W.2d 220 (1991).
On April 1, 1988, Petitioner pled guilty to one count of kidnapping in the United
States District Court for the District of South Dakota.

See Red Kettle, Case No.

In reaching this decision, the court takes judicial notice of its records pertaining
to an earlier habeas petition filed in this court by Petitioner pursuant to 28 U.S.C.§ 2241.
See Red Kettle v. United States of America, Case No. 8:11CV264 (D. Neb. 2012) (“Red
Kettle”).
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8:11CV264 at Filing No. 12-2 .

He was sentenced to life in prison on that conviction.

Id. Thereafter, Petitioner pled guilty to one count of kidnapping and one count of assault
for the same conduct in South Dakota state court.

The South Dakota state court

sentenced Petitioner to life in prison for the kidnapping conviction and 30 years in prison
on the assault conviction. See State v. Red Kettle, 452 N.W.2d 774 (S.D. 1990).
On April 11, 1990, a Nebraska jury convicted Petitioner of first degree sexual
assault (“Count I”), operating a motor vehicle to avoid arrest (“Count II”), and receiving
or retaining stolen property (“Count III”) for the events occurring in Nebraska.

The

District Court of Sheridan County, Nebraska sentenced Petitioner to 15 to 25 years on
Count I, to be served consecutively with any federal or South Dakota sentence, and 1-3
years each of Counts II and III, to be served consecutive to Court I and concurrent with
each other.

Petitioner appealed his Nebraska conviction, and it was affirmed by the

Nebraska Supreme Court on October 25, 1991. See State v. Red Kettle, 239 Neb. 317,
476 N.W.2d 220 (1991).
Petitioner was released from his federal sentence on June 13, 2009, and began
serving his Nebraska state sentence on that date. Red Kettle, Case No. 8:11CV264 at
Filing No. 12.
On August 2, 2011, Petitioner filed a petition for writ of habeas corpus in this
court under 28 U.S.C. § 2241.

Red Kettle, Case No. 8:11CV264 at Filing No. 1.

Petitioner claimed that he was being held illegally by the State of Nebraska and was
entitled to credit on his sentence for the time he spent in federal custody.

The court

dismissed the petition on February 9, 2012,2 finding that Petitioner did not have a liberty

In reaching its decision, the court construed Petitioner’s habeas petition as
arising under § 2254, rather than § 2241. Red Kettle, Case No. 8:11CV264 at Filing No.
30. Consequently, in the current action, the petition was initially dismissed as successive
under 28 U.S.C. § 2244(b). (Filing No. 40.) However, when Petitioner sought
permission from the Eighth Circuit Court of Appeals to file a successive petition, the
Eighth Circuit determined that his petition was not successive because Petitioner was not
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interest in the concurrent running of his federal, South Dakota, and Nebraska convictions.
In dismissing the action, the court noted that the parties had not addressed whether the
habeas petition was barred by the statute of limitations.

Red Kettle, Case No.

8:11CV264 at Filing No. 30. However, because the record was adequate, the court was
able to decide the matter on its merits. Id.
Petitioner did not file a motion for post-conviction relief in state court until
September 4, 2012. (Filing No. 98-2.) The motion was dismissed by the state court as
untimely and procedurally barred.

(Filing No. 98-3.)

Petitioner’s appeal of the denial

of the motion for post-conviction relief was dismissed. (Filing Nos. 97-1, 98-1.)
II. DISCUSSION
1.

Motion to Amend Petition
This action was initiated on June 3, 2013, and since that time, Petitioner has

attempted to amend his petition on multiple occasions.

On October 20, 2015, the court

noted that Petitioner had a “tendency to routinely file supplements, amended petitions,
and motions seeking to amend his claims” and that those filings frustrated the court’s
ability to manage and progress the case. (Filing No. 78 at CM/ECF pp. 4-5.) As a result,
the court provided Petitioner one final opportunity to file an amended petition that
“incorporat[ed] all of his claims for relief.”

(Id.)

The Amended Petition was filed on

November 2, 2015 (Filing No. 80) and remains the operative pleading in this case.
(Filing No. 94.)
Petitioner

has

not

identified

any

legitimate

reason

necessitating

further

given notice, warning, or an opportunity to amend or withdraw before his § 2241 petition
was re-characterized as a § 2254 petition in Red Kettle, Case No. 8:11CV264. (Filing
No. 51.) Therefore, this court subsequently re-opened this case and gave Petitioner leave
to file an amended petition. (Filing No. 78.) Petitioner filed his Amended Petition on
November 2, 2015 (Filing No. 80).
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amendment of the pleadings.

Therefore, Petitioner’s Motion to Amend Petition (Filing

No. 103) will be denied.
2.

Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat.

1214, establishes a one-year limitations period for state prisoners to commence habeas
corpus proceedings under 28 U.S.C. § 2254. The AEDPA’s provisions apply to all habeas
corpus petitions filed after the Act’s effective date, which is April 24, 1996.

Cross-Bey

v. Gammon, 322 F.3d 1012, 1013-14 (8th Cir. 2003).
Under the statute’s provisions, the limitation period begins to run from, “the date
on which the judgment became final by the conclusion of direct review or the expiration
of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). However, the Eighth
Circuit Court of Appeals has recognized a one-year grace period running from the
AEDPA’s enactment for prisoners whose state court proceedings were completed prior
to the AEDPA’s enactment. Ford v. Bowersox, 178 F.3d 522, 523 (8th Cir. 1999).
Petitioner’s judgment became final before the enactment of AEDPA.

Thus,

applying the one-year grace period, Petitioner had until April 24, 1997, to file a habeas
petition. Id. Petitioner did not file his § 2241 habeas petition until August 2, 2011,
which is notably two years after he was released from his federal sentence and began
serving his Nebraska sentence. Petitioner’s § 2241 case was dismissed by this court on
February 9, 2012, and Petitioner did not file the instant

habeas petition until June 3,

2013.
While it is true that the statute of limitations found in § 2244(d)(1) is tolled while
a properly filed application for state post-conviction or other collateral review is
pending, see 28 U.S.C. § 2244(d)(2), Petitioner’s first post-conviction motion in
Nebraska state court was not filed until September 4, 2012. (Filing No. 98-2.) Because
the limitations period had already expired, that post-conviction motion did not toll the
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statute of limitations. See Jackson v. Ault, 452 F.3d 734, 735 (8th Cir.2006) (“[t]he one
year AEDPA limit for federal habeas filing cannot be tolled after it has expired”).
Moreover, Petitioner’s previous habeas petition had no effect on the deadline for filing
his current § 2254 petition. Prior federal habeas petitions do “not qualify as the kind of
application for State post-conviction or other collateral review which tolls the AEDPA
one-year

limitations period for federal habeas petitions pursuant to 28 U.S.C.

2244(d)(2).” Wagner v . Shortridge, No. 8:01CV222, 2002 WL 338151, *5 (March 5,
2002) (quotation omitted).
For the foregoing reasons, the court finds that the petition is clearly untimely
under § 2244(d)(1).
A.

Equitable Tolling and Miscarriage of Justice Exception

Generally, a litigant seeking equitable tolling must establish two elements: “(1)
that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Walker v. Norris, 436 F.3d 1026, 1032 (8th Cir. 2006).
It is unclear what “extraordinary circumstance” Petitioner contends prevented him
from timely filing his petition. However, even assuming Petitioner could establish that
some extraordinary circumstance made it impossible for him to file his petition on time,
Petitioner has not shown that he pursued his rights diligently.
Petitioner has likewise failed to show that he is entitled to the protections of the
miscarriage of justice exception.

In McQuiggin v. Perkins, 133 S. Ct. 1924, 1928

(2013), the Supreme Court held that a habeas petitioner who can show actual innocence
under the rigorous standard of Schlup v. Delo, 513 U.S. 298 (1995), is excused from the
procedural bar of the statute of limitations under the miscarriage of justice exception.
A habeas petitioner, who seeks to overcome the one-year statute of limitations in
§ 2244(d)(1) upon a showing of “actual innocence,” must support his allegations with
“new, reliable evidence” that was not presented at trial and must show that it was more
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likely than not that, in light of the new evidence, no juror, acting reasonably, would have
voted to find the petitioner guilty beyond a reasonable doubt. Schlup, 513 U.S. at 32427.

Petitioner has not pointed to any new evidence suggesting that he is actually

innocent.
IV. CERTIFICATE OF APPEALABILITY
A petitioner cannot appeal an adverse ruling on his petition for writ of habeas
corpus under § 2254 unless he is granted a certificate of appealability.

28 U.S.C.

§ 2253(c)(1); 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b)(1). 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 Petitioner is not entitled
to a certificate of appealability.
IT IS THEREFORE ORDERED:
1.

This matter is dismissed with prejudice, and a separate judgment will be
entered in accordance with this Memorandum and Order.

2.

The court will not issue a certificate of appealability in this matter.

3.

Petitioner’s Motion to Amend Petition (Filing No. 103) is denied.

4.

Petitioner’s Motion for Leave of Court (Filing No. 104) is denied as moot.

5.

Petitioner’s Objection and Summary Judgment (Filing No. 106) is denied
as moot.

6.

Petitioner’s Request for Records (Filing No. 108) is denied as moot.

7.

Petitioner’s Motion for Evidentiary Hearing (Filing No. 109) is denied as
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moot.
8.

Petitioner’s Motion for Order of Recognizance (Filing No. 113) is denied
as moot.

9.

Petitioner’s Motion for Judicial Notice (Filing No. 114) is denied as moot.

10.

Petitioner’s Motion for Notice (Filing No. 115) is denied as moot.

11.

Petitioner’s Motion to Strike (Filing No. 116) is denied as moot.

12.

Petitioner’s Supplemental Pleading for Recognizance (Filing No. 117) is
denied as moot.

13.

Petitioner’s Supplemental Pleading and Notice (Filing No. 118) is denied
as moot.

DATED this 28th day of July, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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