Dillon v. Dooley et al

Filing 8

ORDER denying 5 Motion for Certificate of Appealability; denying 7 Motion for Judgment of Default. Signed by U.S. District Judge Roberto A. Lange on 03/02/2015. (LH)

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

CENTRAL DIVISION

3: 14-CV-03018-RAL

KIM WADE DILLON,
Plaintiff,

vs.
ROBERT BOB DOOLEY, JR., AND THE
ATTORNEY GENERAL OF THE STATE OF
SOUTH DAKOTA,

ORDER DENYING MOTION FOR

JUDGMENT OF DEFAULT AND

DENYING CERTIFICATE OF

APPEALABILITY

Defendants.

Plaintiff Kim Wade Dillon filed a Petition Under 28 U.S.c. § 2254 for Writ of Habeas
Corpus by Person in State Custody in this case on December 12, 2014. Doc. 1. Dillon is serving
time after pleading guilty in Hughes County state court to one count of aggravated assault
against a law enforcement officer, one count of driving under the influence of alcohol, and being
a habitual offender. Dillon v. Dooley, 13-CIV-3001-RAL, Doc. 17 (D.S.D. December 17,2013).
This was not Dillon's first § 2254 petition filed in this Court. Previously, this Court handled a §
2254 Petition filed by Dillon, ordered the Defendant to answer, considered the entire record, and
ultimately issued an Opinion and Order Dismissing Complaint. In that Opinion and Order, this
Court explained at length why Dillon's claims had been procedurally defaulted through a failure
to exhaust them in state court.

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In short, Dillon failed to appeal to the Supreme Court of

South Dakota from his conviction and sentence initially. Though Dillon brought a state court
habeas case, he failed to timely appeal an adverse ruling to the Supreme Court of South Dakota.

Id.. Dillon had not and still has not presented an argument for cause and prejudice or actual
innocence. This Court did not issue a certificate of appealability to Dillon in his first § 2254
case. The United States Court of Appeals for the Eighth Circuit affirmed and denied Dillon's
petition for rehearing en banco Id. at Docs. 32, 33.
Dillon faced an additional bar to this second § 2254 petition. As this Court explained in
its Opinion, Order and Judgment Dismissing Petition for Writ of Habeas Corpus, Doc. 4, the
Antiterrorism and Effective Death Penalty Act limits a second § 2254 habeas case such as this
one by providing in relevant part that "[b]efore presenting a second or successive petition, the
petitioner must obtain an order from the appropriate court of appeals authorizing the district
court to consider the application." 28 U.S.c. § 2244 (b)(3)(A). Similarly, Rule 9 of the Rules
Governing § 2254 Cases in the United States District Courts states that " [b ]efore presenting a
second or successive petition, the petitioner must obtain an order from the appropriate court of
appeals authorizing the district court to consider the petition as required by 28 U.S .C. §
2244(b)(3) and (4)."

Dillon did not obtain such an order from the United States Court of

Appeals for the Eighth Circuit to present another claim under § 2254. Therefore, based on Rule
4 of the Rules Governing § 2254 Cases, " it plainly appears from the petition . . . that the
petitioner is not entitled to relief in the district court," so this Court "must dismiss the petition
and direct the clerk to notify the petitioner." This Court already has done so, as his successive §
2254 claim was frivolous . Doc. 4.
Now Dillon has filed a Motion for Judgment By Default and to Vacate Judgment of
Dismissal, Doc. 7, together with a Notice of Appeal, Doc. 5. This Court did not address issuance
of a certificate of appealability in its previous order.
hereby

2

For the reasons explained herein, it is

ORDERED that Dillon's Motion for Judgment by Default and to Vacate Judgment of
Dismissal, Doc. 7, is denied. It is further
ORDERED that as concerns the Notice of Appeal, Doc. 5, no certificate of appealability
issues. It is further
ORDERED that Dillon may proceed in forma pauperis with his appeal as he is indigent.

It is finally
ORDERED that this action constitutes a first action of Kim Wade Dillon for purposes of
the three-strike rule under 28 U.S.c. § 1915(g).

DATED this 2

nd

day of March, 2015.

BY THE COURT:

UNITED STATES DISTRICT JUDGE

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