Red Kettle v. Scott Frakes

Filing 54

MEMORANDUM AND ORDER - Red Kettle's "MOTION TO CONSOLIDATE and/or INCORPERATE" (Filing No. 53 ) is denied. To the extent Red Kettle seeks relief from the Court's judgment in this matter, he must file a motion for relief from ju dgment pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure within the next 30 days. The clerk of the court is directed to set the following pro se case management deadline: June 8, 2015: Rule 60(b)(6) motion to be filed by this date. 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,

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Petitioner,
v.
MICHAEL L. KINNEY,
Respondent.

8:13CV171

MEMORANDUM AND ORDER

This matter is before the Court on petitioner Byron Red
Kettle’s “MOTION TO CONSOLIDATE and/or INCORPERATE,” filed
pursuant to Rule 42(a) of the Federal Rules of Civil Procedure
(See Filing No. 53).

Red Kettle’s motion will be denied.

However, as discussed below, to the extent Red Kettle seeks
relief from the Court’s judgment in this matter, he is directed
to file a motion for relief from judgment pursuant to Rule
60(b)(6) of the Federal Rules of Civil Procedure.
I.

BACKGROUND

Red Kettle filed a Petition for Writ of Habeas Corpus
(Filing No. 1) in this case on June 3, 2013.

Respondent moved to

dismiss the petition (Filing No. 30) as a second or successive
habeas corpus petition that had not been authorized by the Eighth
Circuit Court of Appeals.

The Court granted respondent’s motion

and dismissed Red Kettle’s petition as a second or successive
petition.

The Court noted the following in its order dismissing

the petition:

“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).”

(Filing No.

40 at CM/ECF p. 3.)
Thereafter, Red Kettle petitioned the Eighth Circuit
Court of Appeals for authorization to file a second or successive
habeas corpus petition pursuant to 28 U.S.C. § 2254.

(See Filing

No. 51, Copy of Order from the Eighth Circuit Court of Appeals.)
The Eighth Circuit Court of Appeals denied Red Kettle’s request
for authorization on April 14, 2015.

The Court held, in relevant

part:
We deny authorization as
unnecessary because any current
§ 2254 petition would not be
successive. See Crouch v. Norris,
251 F.3d 720, 723 (8th Cir. 2001).
Red Kettle was not given notice,
warning, or an opportunity to amend
or withdraw before his 28 U.S.C.
§ 2241 petition filed in 2011 was
recharacterized as a § 2254
petition. See Castro v. United
States, 540 U.S. 375, 382-83 (2003)
(requiring notice, warning, and
opportunity to amend or withdraw
before recharacterization of pro se
litigant’s motion as initial § 2255
motion; when these requirements
unsatisfied, recharacterized motion
not considered § 2255 motion
rendering later motion successive);
see also Martin v. Overton, 391
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F.3d 710, 713 (6th Cir. 2004)
(applying Castro to § 2254
petition).
(Id. at CM/ECF p. 1.)
II.

DISCUSSION
Red Kettle moves to “consolidate” this case with the

appellate court case discussed above.

Red Kettle cites to Rule

42(a) of the Federal Rules of Civil Procedure, which provides
that a court may consolidate actions “before the court” that
“involve a common question of law or fact.”

The appellate court

case is not before this Court, and this Court does not have
jurisdiction to somehow join this case to Red Kettle’s now-closed
appellate court case.
It is not clear from Red Kettle’s motion whether he
seeks to reopen this case so that this Court may consider his
§ 2254 petition in light of the appellate court’s finding that
his petition is not successive.

To the extent Red Kettle seeks

relief from the Court’s judgment in this matter, he is directed
to file a motion for relief from judgment pursuant to Rule
60(b)(6) of the Federal Rules of Civil Procedure.
IT IS ORDERED:
1.

Red Kettle’s “MOTION TO CONSOLIDATE and/or

INCORPERATE” (Filing No. 53) is denied.

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2.

To the extent Red Kettle seeks relief from the

Court’s judgment in this matter, he must file a motion for relief
from judgment pursuant to Rule 60(b)(6) of the Federal Rules of
Civil Procedure within the next 30 days.
3.

The clerk of the court is directed to set the

following pro se case management deadline: June 8, 2015: Rule
60(b)(6) motion to be filed by this date.
DATED this 8th day of May, 2015.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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