Red Kettle v. Scott Frakes

Filing 129

MEMORANDUM AND ORDER - Petitioner's Motion for Recognizance (Filing No. 128 ) is denied. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA BYRON K. RED KETTLE, Petitioner, 8:13CV171 vs. MEMORANDUM AND ORDER SCOTT FRAKES, Respondent. This matter is before the court on Petitioner’s Motion for Recognizance (Filing No. 128) pending the court’s decision of his Motion for Reconsideration (Filing No. 126). Because the court denied Petitioner’s motion (Filing No. 127), Petitioner’s Motion for Recognizance is denied. Petitioner alleges that he is entitled to “custody grade promotions” because a South Dakota detainer on him was “invalidated following mandate in [State v. Red Kettle, 452 N.W.2d 774 (S.D. 1990] without further action.” (Filing No. 128 at CM/ECF p. 2.) The South Dakota Supreme Court reversed and remanded to the trial court for it to resentence Petitioner to concurrent state and federal sentences, rather than consecutive. Red Kettle, supra at 776-77. The court infers that Petitioner believes that the trial court did not follow the mandate on remand. However, any failure does not invalidate a current South Dakota state detainer on Petitioner. To the extent Petitioner seeks to challenge his South Dakota sentences, this is not the proper forum. See, e.g., Breeze v. Trickey, 824 F.2d 653 (8th Cir. 1987) (petitioner’s attempt to challenge the validity of his Indiana sentence through petitions in Missouri courts did not serve to exhausted his state remedies). IT IS THEREFORE ORDERED that: Petitioner’s Motion for Recognizance (Filing No. 128) is denied. Dated this 28th day of March, 2017. BY THE COURT: s/ Richard G. Kopf Senior United States District Judge 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?