Red Kettle v. Scott Frakes

Filing 13

MEMORANDUM AND ORDER - Red Kettle will have 30 days from the date of this Memorandum and Order to file an amended petition for writ of habeas corpus that presents cognizable claims for relief. Failure to file an amended petition for writ of habeas corpus will result in dismissal of this matter without further notice. The clerk's office is directed to set a pro se case management deadline in this case using the following text: October 21, 2013: deadline for Red Kettle to file an amende d petition for writ of habeas corpus. The clerk's office is directed to send to Red Kettle the Form AO 241, Petition for Relief From a Conviction or Sentence By a Person in State Custody. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party with form as directed)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BYRON K. RED KETTLE,

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Petitioner,
v.
STATE OF NEBRASKA,
Respondent.

8:13CV171

MEMORANDUM AND ORDER

Petitioner Byron Red Kettle (“Red Kettle”) has filed a
Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28
U.S.C. § 2254, and a Supplement to the Petition (Filing Nos. 1
and 8).

The Court has conducted an initial review of the

Petition and Supplement to determine whether the claims made by
Red Kettle are, when liberally construed, potentially cognizable
in federal court.

Title 28 U.S.C. § 2254 permits a federal court

to entertain only those applications alleging that a person is in
state custody in violation of the Constitution or laws or
treaties of the United States.

28 U.S.C. § 2254(a).

In Red Kettle’s Petition, he challenges his conviction
in the Sheridan County, Nebraska, District Court for first degree
sexual assault, operating a motor vehicle to avoid arrest, and
receiving or retaining stolen property.

Red Kettle refers to the

conviction and judgment as “void” and full of “error plainly
evident from the record.”

(Filing No. 1 at CM/ECF p. 2.)

However, as best as the Court can tell, Red Kettle does not set

forth any claims in his Petition or explain why the conviction
and judgment are void or describe what errors are plainly evident
from the record.

Thus, the Court finds that Red Kettle’s

Petition does not present any cognizable claims for relief.
However, given Red Kettle’s pro se status, the Court is reluctant
to dismiss the Petition without first giving him an opportunity
to amend.

Thus, Red Kettle will be given 30 days to file an

amended petition that presents a cognizable claim for relief.
Red Kettle’s amended petition for writ of habeas corpus must
state every ground on which he believes he is being held in
violation of the Constitution, laws, or treaties of the United
States.

The Court encourages Red Kettle to present his grounds

using a Form AO 241, Petition for Relief From a Conviction or
Sentence by a Person in State Custody.

The Court will direct the

clerk’s office to provide Red Kettle with such a form.
IT IS ORDERED:
1.

Red Kettle will have 30 days from the date of this

Memorandum and Order to file an amended petition for writ of
habeas corpus that presents cognizable claims for relief.
Failure to file an amended petition for writ of habeas corpus
will result in dismissal of this matter without further notice.
2.

The clerk’s office is directed to set a pro se

case management deadline in this case using the following text:

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October 21, 2013:

deadline for Red Kettle to file an amended

petition for writ of habeas corpus.
3.

The clerk’s office is directed to send to Red

Kettle the Form AO 241, Petition for Relief From a Conviction or
Sentence By a Person in State Custody.
DATED this 24th day of September, 2013.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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