Jones v. Gage
Filing
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MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: The petition for writ of habeas corpus is dismissed without prejudice to reassertion of a subsequent petition upon authorization by the Eighth Circuit Court of Appeals. The court will not issue a certificate of appealability in this matter. Petitioner's Motion for Appointment of Counsel (Filing No. 4 ) is denied. Petitioner's Motion for Personal Recognizance Bond (Filing No. 5 ) is denied as moot. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party)(TCL ) Modified on 1/6/2014 to correct typo(TCL ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARVEL JONES,
Petitioner,
v.
BRAIN GAGE,
Respondent.
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CASE NO. 8:14CV1
MEMORANDUM
AND ORDER
I. INITIAL REVIEW
This matter is before the court on initial review of Petitioner Marvel Jones’s (“Jones”
or “Petitioner”) Petition for Writ of Habeas Corpus. (Filing No. 1.) The court will dismiss
Jones’s petition 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.
This court’s records reflect that Jones’s petition is successive. He challenges his
1997 conviction for first degree sexual assault of a child, second offense. (Filing No. 1 at
CM/ECF p. 2.) Petitioner unsuccessfully challenged this same conviction in earlier federal
habeas corpus litigation. (See Jones v. Kenney, Case No. 4:00CV3002 (D. Neb.), Filing
No. 13, dismissing petition for writ of habeas corpus with prejudice on April 27, 2010; and
Jones v. Britten, Case No. 4:03CV03083 (D. Neb.), Filing No. 6, dismissing successive
petition for writ of habeas corpus without prejudice to reassertion of a subsequent petition
upon certification from the Eighth Circuit Court of Appeals.)
The pending petition for writ of habeas corpus 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
corpus petitions set forth in 28 U.S.C. § 2244(b).
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II. MOTION TO APPOINT COUNSEL
Petitioner seeks the appointment of counsel in this matter. (Filing No. 4.) “There
is neither a constitutional nor statutory right to counsel in habeas proceedings; instead,
[appointment] is committed to the discretion of the trial court.” McCall v. Benson, 114 F.3d
754, 756 (8th Cir. 1997). 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) (citations omitted). 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 that there is no need for the appointment of counsel at this time.
III. CERTIFICATE OF APPEALABILITY
A petitioner cannot appeal an adverse ruling of his petition for writ of habeas corpus
under § 2254 unless he is granted a certificate of appealability. 28 U.S.C. § 2253(c)(1);
Fed. R. App. P. 22(b)(1). A certificate of appealability cannot be granted unless the
petitioner “has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). 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, Petitioner 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
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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.
IT IS THEREFORE ORDERED that:
1.
The petition for writ of habeas corpus is dismissed without prejudice to
reassertion of a subsequent petition upon authorization by the Eighth Circuit
Court of Appeals;
2.
The court will not issue a certificate of appealability in this matter;
3.
Petitioner’s Motion for Appointment of Counsel (Filing No. 4) is denied;
4.
Petitioner’s Motion for Personal Recognizance Bond (Filing No. 5) is denied
as moot; and
5.
A separate judgment will be entered in accordance with this Memorandum
and Order.
DATED this 6th day of January, 2014.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
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