Red Kettle v. Scott Frakes

Filing 40

MEMORANDUM OPINION - In this case, Red Kettle has failed to make a substantial showing of the denial of a constitutional right. The Court is not persuaded that the issues raised in the petition are debatable among reasonable jurists, that a court cou ld resolve the issues differently, or that the issues deserve further proceedings. Accordingly, the Court will not issue a certificate of appealability in this case. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BYRON K. RED KETTLE,
Petitioner,
v.
MICHAEL L. KENNY, Director,
Nebraska Department of
Correctional Services,
Respondent.

I.

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8:13CV171

MEMORANDUM OPINION

MOTION TO DISMISS

This matter is before the Court on a Motion to Dismiss
filed by Respondent (Filing No. 30).

The Court will dismiss Red

Kettle’s Petition for Writ of Habeas Corpus because it is a
second or successive habeas corpus petition that has not been
authorized by the Eighth Circuit Court of Appeals.
The statutory prohibition against successive petitions
by state prisoners is codified in 28 U.S.C. § 2244(b), which
provides in relevant part:
(b)(1) A claim presented in a
second or successive habeas corpus
application under section 2254 that
was presented in a prior
application shall be dismissed.
(2) A claim presented in a
second or successive habeas corpus
application under section 2254 that
was not presented in a prior

application shall be dismissed
unless -(A) the applicant shows that the
claim relies on a new rule of
constitutional law, made
retroactive to cases on collateral
review by the Supreme Court, that
was previously unavailable; or
(B)(i) the factual predicate for
the claim could not have been
discovered previously through the
exercise of due diligence; and
(ii) the facts underlying the
claim, if proven and viewed in
light of the evidence as a whole,
would be sufficient to establish by
clear and convincing evidence that,
but for constitutional error, no
reasonable factfinder would have
found the applicant guilty of the
underlying offense.
(3)(A) 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.
In Magwood v. Patterson, 130 S. Ct. 2788 (2010), the United
States Supreme Court held that “the phrase ‘second or successive’
must be interpreted with respect to the judgment challenged.”
Id. at 2797.

In other words, the phrase “second or successive”

applies to entire habeas petitions, and not to individual claims
in those petitions.

Id. at 2798.
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This Court’s records reflect that Red Kettle’s Petition
is successive.

He challenges his conviction in the District

Court of Sheridan County for first degree sexual assault,
operating a motor vehicle to avoid arrest, and receiving or
retaining stolen property.

(Filing No. 18 at CM/ECF p. 1.)

Petitioner unsuccessfully challenged this same conviction in
earlier federal habeas corpus litigation.

(See Red Kettle v.

Houston, Case No. 8:11CV264 (D. Neb.), Filing No. 30, dismissing
petition for writ of habeas corpus with prejudice on February 9,
2012.)
The pending petition is a second or successive petition
under the statute because it challenges the same conviction and
sentence already challenged in this Court.

The record does not

reflect that petitioner has received permission from the Eighth
Circuit Court of Appeals to again attack this conviction.

If

petitioner wishes to continue to pursue this matter, he should
file a motion with the Eighth Circuit Court of Appeals fully
addressing the legal requirements for successive habeas petitions
set forth in 28 U.S.C. § 2244(b).
II.

CERTIFICATE OF APPEALABILITY

A petitioner cannot appeal an adverse ruling of his
petition for writ of habeas corpus under § 2254 unless he is

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granted a certificate of appealability.
Fed. R. App. P. 22(b)(1).

28 U.S.C. § 2253(c)(1);

A certificate of appealability cannot

be granted unless the petitioner “has made a substantial showing
of the denial of a constitutional right.”
§ 2253(c)(2).

28 U.S.C.

To make such a showing, “[t]he petitioner must

demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or
wrong.”

Slack v. Daniel, 529 U.S. 473, 484 (2000).
In this case, Red Kettle has failed to make a

substantial showing of the denial of a constitutional right.

The

Court is not persuaded that the issues raised in the petition are
debatable among reasonable jurists, that a court could resolve
the issues differently, or that the issues deserve further
proceedings.

Accordingly, the Court will not issue a certificate

of appealability in this case.

A separate order will be entered

in accordance with this memorandum opinion.
DATED this 18th day of April, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

*

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