Jones v. Gage

Filing 14

MEMORANDUM AND ORDER - Petitioner's Objection (Filing No. 13 ) is overruled. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARVEL JONES,

)
)
)
)
)
)
)
)
)

Petitioner,
v.
BRIAN GAGE,
Respondent.

CASE NO. 8:14CV1

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner’s Objection (Filing No. 13) to the court’s
denial of his petition for writ of habeas corpus. On January 8, 2014, the court determined
that the petition for writ of habeas corpus was a second or successive petition under 28
U.S.C. § 2244 because it challenged the same conviction and sentence already challenged
in this court. (See Filing No. 10.) Petitioner argues that the court should not have
dismissed his petition as successive without first considering “whether the interests of
justice would be better served by addressing the merits of the petition.” (Filing No. 13 at
CM/ECF p. 1.) However, Section 2244 states that “[b]efore a second or successive [petition
for writ of habeas corpus] 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.” 28 U.S.C. § 2244(b)(3)(A). Section 2244 is written in mandatory terms
(“shall”), leaving no discretion to the district court. As such, Petitioner’s Objection will be
overruled.
IT IS THEREFORE ORDERED that: Petitioner’s Objection (Filing No. 13) is
overruled.
DATED this 17th day of April, 2014.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge
*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for
the District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services
or products they provide on their Web sites. Likewise, the court has no agreements with any of these third
parties or their Web sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect
the opinion of the court.