Red Kettle v. Scott Frakes

Filing 132

MEMORANDUM AND ORDER - Petitioner's motion for DNA testing (Filing No. 130 ) is denied. His corresponding motion to appoint counsel (Filing No. 131 ) is also denied. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)

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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. Petitioner seeks an order from the court ordering DNA testing of evidence in his case pursuant to 18 U.S.C. § 3600. (Filing No. 130.) Section 3600 states, in relevant part: Upon a written motion by an individual sentenced to imprisonment or death pursuant to a conviction for a Federal offense (referred to in this section as the “applicant”), the court that entered the judgment of conviction shall order DNA testing of specific evidence if . . . (emphasis added). Petitioner’s request fails for two reasons: (1) this habeas action is before the court to challenge Petitioner’s Nebraska state court convictions, not his South Dakota federal conviction, and (2) this court did not enter judgment of his federal conviction. The court reminds Petitioner, again, this case is closed. IT IS THEREFORE ORDERED that: Petitioner’s motion for DNA testing (Filing No. 130) is denied. His corresponding motion to appoint counsel (Filing No. 131) is also denied. Dated this 13th day of April, 2017. BY THE COURT: s/ Richard G. Kopf Senior United States District Judge 2

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