Williams v. Hansen
MEMORANDUM AND ORDER regarding Petition 1 filed by DeCabooter Williams. After conducting initial review, the petition (filing no. 1 ) is dismissed with prejudice. No certificate of appealability has been or will be issued. A separate judgment will be issued. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(JAB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MEMORANDUM AND ORDER
I have conducted an initial review of the Petition for Writ of Habeas Corpus
(filing no. 1) to determine whether the claim made by Petitioner is, when liberally
construed, potentially cognizable in federal court. I apply Rule 4 of the Rules
Governing § 2254 Cases. Williams raises a claim of ineffective assistance of trial,
appellate and post-conviction counsel.
In Williams v. Britten, No. 8:12CV163 (D. Neb., September 27, 2012) (filing no.
12), Judge Smith Camp granted summary judgment in favor of the Respondent, denied
Williams’ motion to stay, and dismissed that matter with prejudice.1 In that case,
Petitioner raised claims of ineffective assistance of trial counsel, appellate counsel and
post-conviction counsel. (Filing no. 3.2) The judge dismissed the case with prejudice
because the statute of limitations had run against Petitioner and there was no excuse for
the untimely filing. No appeal was taken.
Therefore, this matter will be dismissed with prejudice. The claim presented
here–ineffective assistance of trial, appellate and post-conviction counsel–was
previously and unsuccessfully presented to Judge Smith Camp. “A claim presented in
See also State v. Williams, 889 N.W.2d 99 (Neb. 2017) (directing the state
district court to dismiss a second post-conviction action).
The claim of ineffective assistance of post-conviction counsel was dismissed
upon initial review.
a second or successive habeas corpus application under section 2254 that was presented
in a prior application shall be dismissed.” 28 U.S.C. § 2244 (b)(1). (Emphasis added.)
See Gonzalez v. Crosby, 545 U.S. 524, 530 (2005) (Under provision of Antiterrorism
and Effective Death Penalty Act (AEDPA) governing second or successive habeas
petitions, if the claim presented in the second or successive petition was also presented
in the prior petition, the claim must be dismissed.)
Even if Petitioner could somehow avoid the bar of § 2244 (b)(1), he would be
required to seek the permission of the Court of Appeals to commence this second
action. 28 U.S.C. § 2444 (b)(2) & (3)(A). He has not done so, and this matter must be
dismissed on that basis as well. Burton v. Stewart, 549 U.S. 147, 152 (2007) (the district
court lacked jurisdiction to entertain habeas petition since prisoner did not obtain order
authorizing him to file second petition).
Finally, a petitioner cannot appeal an adverse ruling on his petition for writ of
habeas corpus under § 2254 unless he is granted a certificate of appealability. 28 U.S.C.
§ 2253(c)(1); 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b)(1). The standards for
certificates (1) where the district court reaches the merits or (2) where the district court
rules on procedural grounds are set forth in Slack v. McDaniel, 529 U.S. 473, 484-485
(2000). I have applied the appropriate standard and determined that Petitioner is not
entitled to a certificate of appealability.
IT IS ORDERED that the petition (filing no. 1) is dismissed with prejudice. No
certificate of appealability has been or will be issued. A separate judgment will be
DATED this 8th day of June, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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