Floyd v. Houston

Filing 132

MEMORANDUM AND ORDER - Petitioner's claims are amended to include Claim Seven as set forth in this Memorandum and Order. In addition to Petitioner's claims as set forth in Filing No. 128 and Filing No. 130 , Respondents shall respond to the actual innocence claim in Claim Seven and address whether such claim defeats any procedural default as Petitioner alleges. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WILLIAM C. FLOYD JR.,
Petitioner,

8:13CV195

vs.
SCOTT FRAKES, Director of the
Nebraska Department of Correctional
Services; and BRAD HANSEN, Warden
Tecumseh State Correctional Institution;

MEMORANDUM
AND ORDER

Respondents.
This matter is before the court on Petitioner’s Motion to Amend his Habeas
Corpus Petition to add a claim of actual innocence. (Filing No. 131). The court
had previously granted Petitioner leave to file an amended habeas petition in the
court’s April 7, 2017, Memorandum and Order, that “clearly presents all of his
claims for relief.” (Filing No. 122.) Petitioner filed his 58-page Amended
Petition for Writ of Habeas Corpus (Filing No. 127), and the court has condensed
and summarized Petitioner’s claims in the court’s August 7, 2017, Memorandum
and Order (Filing No. 128), as amended by the court’s August 23, 2017,
Memorandum and Order (Filing No. 130). In the present motion to amend,
Petitioner relies on several of the allegations contained in his Amended Petition for
Writ of Habeas Corpus and states that he “has presented a claim of Actual
Innocense as a gateway through any type of procedural default that the State may
deem” and that justice requires he be permitted to amend. (Filing No. 131 at
CM/ECF p. 15.)
The court notes that Petitioner indirectly referred to a claim of actual
innocence in his Amended Petition for Writ of Habeas Corpus in the context of his
claim of ineffective assistance of trial counsel, Claim One. (Filing No. 127 at

CM/ECF p. 33.) The court will, thus, permit Petitioner to amend his habeas corpus
petition and will add Petitioner’s claim of actual innocence as Claim Seven.
Petitioner is admonished, however, that no further amendments will be entertained
as Petitioner was previously ordered to include all claims for relief in a single
amended habeas petition pursuant to the court’s April 7, 2017, Memorandum and
Order.
IT IS THEREFORE ORDERED that: Petitioner’s claims are amended to
include Claim Seven as set forth in this Memorandum and Order. In addition to
Petitioner’s claims as set forth in Filing No. 128 and Filing No. 130, Respondents
shall respond to the actual innocence claim in Claim Seven and address whether
such claim defeats any procedural default as Petitioner alleges.
Dated this 16th day of October, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

2