MEMORANDUM AND ORDER that Bradley's petition 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. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
I. INITIAL REVIEW
This matter is before the court on initial review of Petitioner Juan Bradley’s
(“Bradley”) Petition for Writ of Habeas Corpus. (Filing No. 1.) The court will
dismiss the petition because it is a second or successive habeas corpus petition that
has not been authorized by the Eighth Circuit Court of Appeals.1
The statutory prohibition against successive petitions by state prisoners is
codified in 28 U.S.C. § 2244, 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--
The court notes that Bradley has failed to comply with Rule 2 of the Rules
Governing Section 2254 Cases because he has failed to name a Respondent. The
court will address the issue if the Eighth Circuit Court of Appeals authorizes
Bradley to file a second or successive habeas corpus petition.
(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;
(B)(i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence;
(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.
28 U.S.C. § 2244(b).
In Magwood v. Patterson, 561 U.S. 320, 332-33 (2010), the United States
Supreme Court held that “the phrase ‘second or successive’ must be interpreted
with respect to the judgment challenged.” In other words, the phrase “second or
successive” applies to entire habeas petitions, and not to individual claims in those
This court’s records reflect that Bradley’s petition is successive. He
challenges his 1981 conviction in the District Court of Douglas County, Nebraska,
for first degree felony murder. Bradley unsuccessfully challenged this same
conviction under earlier federal habeas corpus litigation. (See Bradley v. State of
Nebraska, et al., Case No. 4:10CV3096, Filing No. 8 (petition for authorization to
file a successive habeas application denied); Bradley v. Clarke, Case No.
4:93CV3312, Filing No. 9 (dismissing petition); Bradley v. Hopkins, Case No.
8:92CV65, Filing No. 10 (dismissing petition)).
The pending petition is a second or successive petition under the statute
because it challenges the same judgment already challenged in this court.
Moreover, the petition does not fit any of the recognized exceptions to the bar on
second or successive petitions. The record does not reflect that Bradley has
received permission from the Eighth Circuit Court of Appeals to again attack this
conviction. If he 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).
II. 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, Bradley 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 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:
Bradley’s petition 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.
A separate judgment will be entered in accordance with this
Memorandum and Order.
Dated this 2nd day of February, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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