Johnson v. Frakes et al
MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Johnson'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. The court will enter judgment by separate document. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(TCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JEREMY L. JOHNSON,
SCOT FRAKES, Director; and BRAD
I. INITIAL REVIEW
This matter is before the court on initial review of Petitioner Jeremy L.
Johnson’s 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.
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-(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 Johnson’s petition is successive. He
challenges his 1997 convictions in the District Court of Douglas County, Nebraska
for felon in possession of a deadly weapon, felony flight to avoid arrest, two counts
of unlawful discharge of a firearm into an occupied dwelling, and use of a deadly
weapon to commit a felony. Johnson unsuccessfully challenged these same
convictions in earlier federal habeas corpus litigation. (See Johnson v. Houston,
Case No. 4:05CV3111, Filing No. 30 (dismissing petition with prejudice).
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.1 The record does not reflect that Johnson has
received permission from the Eighth Circuit Court of Appeals to again attack these
convictions. 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).2
The Supreme Court has recognized three exceptions to the Section 2244(b)
restrictions on second or successive applications where the prisoner challenged the
same state-court judgment once before. First, in Slack v. McDaniel, 529 U.S. 473
(2000), the Court held that the restrictions of Section 2244(b) do not apply to a
second application that followed an earlier application dismissed for lack of
exhaustion. Magwood v. Patterson, 561 U.S. 320, 332 (2010). Second, in Stewart
v. Martinez–Villareal, 523 U.S. 637 (1998), it ruled that those restrictions do not
prohibit a second application where “the prisoner filed his first habeas application
before his execution date was set,” claiming incompetency to be executed under
Ford v. Wainwright, 477 U.S. 399 (1986). Panetti v. Quarterman, 551 U.S. 930,
944 (2007). Third, and similarly, the prohibition against an unauthorized second
application does not apply where such a Ford claim that would have been unripe
had the petitioner presented it in his first application is first filed in a subsequent
petition. Panetti, 551 U.S. at 944 (“The statutory bar on ‘second or successive’
applications does not apply to a Ford claim brought in an application filed when
the claim is first ripe.”).
Johnson raises a new claim of actual innocence based on newly discovered
evidence. The addition of this claim does not change the requirement that the
Eighth Circuit must first grant Johnson authorization to file his current petition in
this court. See Brian Means, Federal Habeas Manual §§ 11:8, 11:44, 11:81, 11:8411:85 (2016) (explaining that the second or successive rule applies to challenges to
the same judgment and that pre-authorization from the circuit court before filing a
second or successive petition in the district court is jurisdictional); see, e.g., ElShabazz v. Symmes, Civil No. 08-5753, 2008 WL 5146553 (D. Minn. 2008)
(unpublished) (requiring pre-authorization from the Eighth Circuit Court of
Appeals when new petition raised new claims based on newly discovered
II. CERTIFICATE OF APPEALABILITY
A petitioner cannot appeal an adverse ruling on a petition for writ of habeas
corpus under § 2254 unless 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, Johnson 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:
Johnson’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.
The court will enter judgment by separate document.
Dated this 15th day of June, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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