Sherrod v. Nebraska Department of Corrections

Filing 12

MEMORANDUM AND ORDER - that the petition for writ of habeas corpus is denied anddismissed without prejudice. No certificate of appealability has been or will be issued. If Petitioner attempts to appeal this matter, I herewith certify that any appeal is not taken in good faith. Judgment will be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAMES E. SHERROD,
Petitioner,
v.
NEBRASKA DEPARTMENT OF
CORRECTIONS,
Respondent.

)
)
)
)
)
)
)
)
)
)
)

8:18CV155

MEMORANDUM AND ORDER

After initial review under Rule 4 of the Rules Governing Section 2254 Cases in
the United States District Courts, I will dismiss the § 2254 petition without prejudice.1
I denied Petitioner’s habeas corpus petition attacking his Lancaster County,
Nebraska, conviction in 2000 and dismissed it with prejudice. (4:00CV3163.) Not
deterred, Petitioner filed another habeas corpus petition that was dismissed without
prejudice as a successive petition (4:02CV3098) by Judge Strom. After that, the Court
of Appeals denied Petitioner’s application for authorization to file a successive habeas
petition in Judge Strom’s case. (Filing no. 40 in 4:02CV3098.2) When still another
petition was filed, Judge Shanahan (4:03CV3305) dismissed it also without prejudice
for the same reasons articulated by Judge Strom.
The present petition is successive and no permission has been granted by the
Court of Appeals to file a successive petition. 28 U.S.C. § 2244 (b)(1). (Emphasis
1

2

See State v. Sherrod, 464 N.W.2d 809 (Neb. 1991) for background.

As Judge Strom observed, in addition to my 2000 case, Sherrod had filed four other
earlier habeas actions, to wit: 4:93CV3350 (D. Neb. 1993), 4:93CV3328 (D. Neb.
1993), and 4:91CV3200 (D. Neb. 1991).

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 for writ of habeas corpus is denied and
dismissed without prejudice. No certificate of appealability has been or will be issued.
If Petitioner attempts to appeal this matter, I herewith certify that any appeal is not
taken in good faith. Judgment will be entered by separate document.
DATED this 14th day of August, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
2