Red Kettle v. Scott Frakes

Filing 78

ORDER - Red Kettle's Motion (Filing No. 61 ) brought pursuant to Rule 60(b)(6) and Motion to Amend Petition (Filing No. 72 ), and respondent's Motion for a Progression Order (Filing No. 67 ), are granted to the extent the relief they sought is consistent with the relief provided in this order. Red Kettle's Motion for Appointment of Counsel (Filing No. 65 ) and Motion for Hearing (Filing No. 75 ) are denied. Red Kettle must file an amended petition for writ of habe as corpus within 30 days that incorporates all of his claims for relief. Failure to file an amended petition for writ of habeas corpus could result in the court dismissing this action without prejudice and without further notice. Any document Red Kettle submits to the clerk of the court for filing in this case must clearly display the case number. The clerk of the court is directed to: (a) reopen this case, (b) send to Red Kettle a blank AO Form 241 ("Petition for Relief From a Conv iction or Sentence By a Person in State Custody"), and (c) set the following pro se case management deadline in this case: November 23, 2015: check for Red Kettle's amended petition for writ of habeas corpus. Red Kettle is ordered not to file any other document seeking to amend his claims aside from the one contemplated above without first obtaining leave from the court to do so. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party with form)(GJG)

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

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8:13CV171

ORDER

This matter is before the Court on petitioner Byron Red
Kettle’s motion (Filing No. 61) brought pursuant to Rule 60(b)(6)
of the Federal Rules of Civil Procedure.

Also pending are Red

Kettle’s Motion for Appointment of Counsel (Filing No. 65),
Motion to Amend Petition (Filing No. 72), and Motion for Hearing
(Filing No. 75) and Respondent’s Motion for Progression Order
(Filing No. 67).
For the reasons that follow, the Court will reopen this
case and order Red Kettle to file one amended petition for writ
of habeas corpus that incorporates all of his claims for relief.
In addition, the Court will order Red Kettle not to file any
other amended pleadings or supplements to his amended pleadings,
aside from the one contemplated above, without first obtaining
leave from the court.

Finally, the Court will deny Red Kettle’s

requests for the appointment of counsel and for a hearing.

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.

This Court granted respondent’s motion

and dismissed Red Kettle’s petition as second or successive to a
habeas corpus petition Red Kettle filed in this Court in 2011.
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.
part:

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The Court held, in relevant

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
F.3d 710, 713 (6th Cir. 2004)
(applying Castro to § 2254
petition).
(Id. at CM/ECF p. 1.)
On April 23, 2015, Red Kettle moved to “consolidate”
this case with the appellate court case discussed above.

This

Court denied the motion, but provided Red Kettle with an
opportunity to file a motion for relief from judgment pursuant to
Rule 60(b)(6) of the Federal Rules of Civil Procedure.

Red

Kettle filed his motion seeking relief from the Court’s judgment
on July 7, 2015.

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II.

DISCUSSION OF RED KETTLE’S RULE 60 MOTION

Red Kettle moves to reopen this case in light of the
above-mentioned ruling by the Eighth Circuit Court of Appeals.
Respondent opposes Red Kettle’s motion only to the extent that
Red Kettle attempts to advance additional claims for relief in
his motion.

In other words, respondent does not oppose the

reopening of this case.
Rule 60(b)(6) “grants federal courts broad authority to
relieve a party from a final judgment ‘upon such terms as are
just,’ provided that the motion is made within a reasonable time
and is not premised on one of the grounds for relief enumerated
in clauses (b)(1) through (b)(5).”

Liljeberg v. Health Serv.

Acquisition Corp., 486 U.S. 847, 863 (1988).

“Relief is

available under Rule 60(b)(6) only where exceptional
circumstances have denied the moving party a full and fair
opportunity to litigate his claim and have prevented the moving
party from receiving adequate redress.”

Harley v. Zoesch, 413

F.3d 866, 871 (8th Cir. 2005).
The Court finds that Red Kettle is entitled to relief
under Rule 60(b)(6) because this Court improperly dismissed his
habeas corpus petition as a second or successive petition.
Accordingly, the Court will direct the clerk of the court to
reopen this case.
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A word of caution to Red Kettle:

The Court notes Red

Kettle’s tendency to routinely file supplements, amended
petitions, and motions seeking to amend his claims.

These

filings frustrate the Court’s ability to effectively manage and
progress this case.

Therefore, Red Kettle will have 30 days in

which to file one amended petition for writ of habeas corpus that
incorporates all of his claims for relief.

The amended petition

must not incorporate any part of his prior petitions or
supplements to his petitions.

The amended petition will

supersede Red Kettle’s prior pleadings in this matter.

Red

Kettle is encouraged to use the court-approved form to draft his
amended petition, which the clerk of the court will provide to
him.

Red Kettle is ordered not to file any other amended

pleadings or supplements to his amended pleadings, aside from the
one contemplated above, without first obtaining leave of court.
After Red Kettle files his amended petition for writ of
habeas corpus, the Court will enter an order progressing this
case to final resolution.
In light of the foregoing, the Court will grant
respondent’s Motion for a Progression Order (Filing No. 67) and
Red Kettle’s Motion to Amend Petition (Filing No. 72) to the
extent the relief they sought is consistent with the relief

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provided in this order.

In addition, Red Kettle’s Motion for

Hearing (Filing No. 75) will be denied as premature.
III.

MOTION FOR APPOINTMENT OF COUNSEL

“[T]here is neither a constitutional nor statutory
right to counsel in habeas proceedings; instead, [appointment] is
committed to the discretion of the trial court.”
Benson, 114 F.3d 754, 756 (8th Cir. 1997).

McCall v.

As a general rule,

counsel will not be appointed unless the case is unusually
complex or the petitioner’s ability to investigate and articulate
the claims is unusually impaired or an evidentiary hearing is
required.

See, e.g., Morris v. Dormire, 217 F.3d 556, 558-59

(8th Cir. 2000), cert. denied, 531 U.S. 984 (2000); Hoggard v.
Purkett, 29 F.3d 469, 471 (8th Cir. 1994).

See also Rule 8(c) of

the Rules Governing Section 2254 Cases in the United States
District Courts (requiring appointment of counsel if an
evidentiary hearing is warranted).

The Court has carefully

reviewed the record and finds there is no need for the
appointment of counsel at this time.
IT IS ORDERED:
1.

Red Kettle’s Motion (Filing No. 61) brought

pursuant to Rule 60(b)(6) and Motion to Amend Petition (Filing
No. 72), and respondent’s Motion for a Progression Order (Filing

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No. 67), are granted to the extent the relief they sought is
consistent with the relief provided in this order.
2.

Red Kettle’s Motion for Appointment of Counsel

(Filing No. 65) and Motion for Hearing (Filing No. 75) are
denied.
3.

Red Kettle must file an amended petition for writ

of habeas corpus within 30 days that incorporates all of his
claims for relief.

Failure to file an amended petition for writ

of habeas corpus could result in the court dismissing this action
without prejudice and without further notice.

Any document Red

Kettle submits to the clerk of the court for filing in this case
must clearly display the case number.
4.

The clerk of the court is directed to: (a) reopen

this case, (b) send to Red Kettle a blank AO Form 241 (“Petition
for Relief From a Conviction or Sentence By a Person in State
Custody”), and (c) set the following pro se case management
deadline in this case:

November 23, 2015: check for Red Kettle’s

amended petition for writ of habeas corpus.
5.

Red Kettle is ordered not to file any other

document seeking to amend his claims aside from the one

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contemplated above without first obtaining leave from the court
to do so.
DATED this 20th day of October, 2015.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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