Red Kettle v. United States of America

Filing 11

ORDER DISMISSING CASE, construing motion as a motion under 28 U.S.C. §2255 and dismissing 1 ; denying as moot Motion for Judicial Notice 4 ; granting 8 the State of South Dakota's Motion to Dismiss; denying 7 motion for appointment of counsel. No certificate of appealability shall be issued. Signed by U.S. District Judge Karen E. Schreier on 10/16/17. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
BYRON KEITH RED KETTLE,
a/k/a BYRON K. RED KETTLE,
Petitioner,

5:17-CV-05039-KES

vs.

ORDER DISMISSING CASE

UNITED STATES OF AMERICA and
ATTORNEY GENERAL OF THE STATE
OF SOUTH DAKOTA.
Respondents.

Plaintiff, Byron Keith Red Kettle, is an inmate housed by the Nebraska
Department of Corrections in Omaha, Nebraska. Red Kettle filed an objection
(Docket 7) to Magistrate Judge Duffy’s Order for Service (Docket 6). Red Kettle
disputes his motion not being construed as a motion under 28 U.S.C. § 2255.
Docket 7. Red Kettle also asks for the assistance of counsel. Id. For the
following reasons, the court grants Red Kettle’s objection, denies his request for
the appointment of counsel, and dismisses his motion.
BACKGROUND
Red Kettle robbed a convenience store in Box Elder, South Dakota, on
September 30, 1987, and kidnapped the store clerk. He fled to Sheridan
County, Nebraska, where he sexually assaulted the clerk. The clerk later
escaped and Red Kettle was arrested. While in custody at the Pennington
County Jail in Rapid City, South Dakota, under federal kidnapping charges, he

attacked a correctional officer in an attempt to escape. Red Kettle was
prosecuted by three different jurisdictions.
In United States District Court, District of South Dakota, Red Kettle
pleaded guilty to kidnapping as well as assaulting a federal officer. On April 1,
1988, he received a life sentence on the kidnapping charge, and on August 24,
1988, he was sentenced to 92 months in prison on the assault charge. The
assault sentence was ordered to be served consecutively to the kidnapping
sentence. See United States v. Red Kettle, CR. 87-50067-RHB and CR. 8850014-RHB (D.S.D.).
In South Dakota state court, Red Kettle pleaded guilty to kidnapping and
assault and was sentenced to life in prison on the kidnapping charge and 30
years in prison on the assault charge. After an appeal, both sentences were
ordered to run concurrent to the corresponding federal sentence. See State v.
Red Kettle, 452 N.W.2d 774 (S.D. 1990).
In Nebraska state court, Red Kettle was convicted by a jury of first degree
sexual assault, operating a motor vehicle to avoid arrest, and receiving or
retaining stolen property. On May 15, 1990, Red Kettle was sentenced to 15 to
25 years on the sexual assault charge. On the other two charges, Red Kettle
was sentenced to 1-3 years each, to be served consecutive to the sexual assault
sentence and concurrent with each other. See State v. Red Kettle, 476 N.W.2d
220 (Neb. 1991).
On June 13, 2009, Red Kettle was released from federal custody and
began serving his Nebraska state sentence. See Red Kettle v. United States,

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CIV. 8:11CV264 (D. Neb. 2012) at Docket 12. Currently, he is in the custody of
Nebraska authorities.
Following his conviction, Red Kettle filed numerous actions in federal
court including motions for relief under 28 U.S.C. § 2241, 28 U.S.C. § 2254,
and 28 U.S.C. § 2255. See CIV. 06-5094, 08-5075, 08-5035, 09-5105 (D.S.D.);
CIV. 08-2029 (D. La.); CIV. 04-257 (D. Colo); and CIV. 11-264 and 13-171 (D.
Neb).
DISCUSSION
1. Red Kettle’s Objection
“A document filed pro se is ‘to be liberally construed.’ ” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)). Liberally construed, Red Kettle’s objection (Docket 7) clarifies his desire
to challenge his federal sentence under 28 U.S.C. § 2255. Id. Section 2255
allows “a prisoner in custody under a sentence” of a federal court to attack that
sentence. 28 U.S.C. § 2255. A prisoner is in custody for the purpose of
28 U.S.C. § 2255 when incarcerated in either federal or state prison, provided
that a federal court has sentenced the prisoner and the prisoner remains
subject to future custody under that sentence. See Jackson v. United States,
423 F.2d 1146 (8th Cir. 1970). And Rule 1(b) of the Rules Governing Section
2255 Proceedings allows a prisoner held in state custody to bring a motion
under § 2255 to attack a federal sentence.
On April 1, 1988, Red Kettle received a life sentence for kidnapping in
United States District Court in the District of South Dakota. See United States

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v. Red Kettle, CR. 87-50067. Despite being released from federal custody on
June 13, 2009, Red Kettle remains subject to his federal sentence for
kidnapping. The Nebraska state court sentence is 15 to 20 years, to be served
consecutive to any federal or South Dakota sentence, and 1 to 3 years, to be
served consecutive to the 15-20 year sentence. See State v. Red Kettle, 476
N.W.2d 220 (Neb. 1991). Therefore, Red Kettle is in custody for the purpose of
28 U.S.C. § 2255 and the court will construe his motion as a § 2255 motion.
2. Preliminary Review
Rule 4 of the Rules Governing Section 2255 Proceedings requires the
court to conduct a preliminary review of the motion. “If it plainly appears from
the motion, any attached exhibits, and the record of prior proceedings that the
moving party is not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party.” 28 U.S.C. § 2255, Rule 4. This
court conducted a preliminary review and finds that Red Kettle’s motion is time
barred and that he lacks permission from the Eighth Circuit Court of Appeals to
file a successive § 2255 motion.
Motions under § 2255 are subject to a one-year statute of limitation that
runs from the latest of four specified dates. See 28 U.S.C. § 2255(f). Only one
date is relevant here, which is “the date on which the judgment of conviction
becomes final.” Id. A judgment is deemed final “where the judgment of
conviction was rendered, the availability of appeal exhausted, and the time
for petition for certiorari had elapsed [or a petition for certiorari finally
denied. . . ].” United States v. Johnson, 457 U.S. 537, 543, n.8 (1982) (citation

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omitted); see also Clay v. United States, 537 U.S. 522, 527 (2003) (for the
purpose of starting § 2255's one-year limitation period, “[f]inality attaches
when [the Supreme] Court affirms a conviction on the merits on direct review
or denies a petition for a writ of certiorari, or when the time for filing a
certiorari petition expires.”). The time for filing a petition for certiorari is 90
days after entry of the court of appeals judgment. Clay, 537 U.S. at 525.
In the instant case, Red Kettle’s federal judgment of conviction became
final on April 1, 1988. See United States v. Red Kettle, CR. 87-50067-RHB.
More than one year has passed since the date his judgment of conviction
became final. Furthermore, Red Kettle has not alleged that he was prevented
from filing a motion, that a new right has been recognized, or that there was
evidence which could not have been discovered until recently. Thus, Red
Kettle’s motion is time barred unless the court finds that there was newly
discovered evidence that would establish Red Kettle’s innocence by clear and
convincing evidence or that the Supreme Court has recognized a new right
and determined that it is retroactive. See 28 U.S.C. § 2255.
In his Objection to Magistrate Order, Red Kettle asks this court to take
notice of United States v. Detwiler, 338 F. Supp. 2d 1166 (D.Or. 2004), a
District of Oregon case holding that the Feeney Amendment to the Federal
Sentencing Guidelines unconstitutionally interfered with the separation of
powers. Docket 7 at p. 3. Even if this court accepted the holding of Detwiler,
Red Kettle was sentenced before the enactment of the Feeney Amendment in
2003. See PROTECT Act, Pub. L. No. 108-21 § 401, 117 Stat. 650, 667 (2003).
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Therefore, Detwiler fails to save Red Kettle’s motion.
Additionally, § 2255(h) provides that “[a] second or successive motion
must be certified as provided in § 2244 by a panel of the appropriate court of
appeals . . . .” Red Kettle has filed three previous habeas motions in the
District of South Dakota. See CIV. 06-5094, 08-5075, 08-5035, 09-5105
(D.S.D.). And Red Kettle has not received this required certification. As a
result, Red Kettle’s § 2255 motion is successive and the court may not
entertain the motion on its merits.
And if Red Kettle intended to challenge his state of South Dakota
sentence under 28 U.S.C. § 2254, Red Kettle’s § 2254 petition is denied. A
federal court may not consider a claim for relief in a habeas corpus petition if
the petitioner has not exhausted his state remedies. See 28 U.S.C. § 2254(b)
and (c). “[T]he state prisoner must give the state courts an opportunity to act
on his claims before he presents those claims to a federal court in a habeas
petition.” O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Red Kettle failed to
demonstrate that the issues he now raises have been exhausted in state court.
If a petitioner does not exhaust his remedies in state court, then he must show
“cause and prejudice” or a “fundamental miscarriage of justice” to qualify for
an exemption to exhaustion. Murray v. Carrier, 477 U.S. 478, 785 (1986)
(quoting Engle v. Isaac, 456 U.S. 107, 135 (1982)). Red Kettle has not
demonstrated “cause and prejudice” or a “fundamental miscarriage of justice.”
As a result, Red Kettle’s § 2254 motion is denied.

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3. Counsel
Red Kettle asks for the assistance of counsel. Docket 7. It is well settled
that “[a] habeas corpus proceeding is civil in nature, and ‘the Sixth Amendment
right to counsel afforded for criminal proceedings does not apply.’ ” Hoggard v.
Purkett, 29 F.3d 469, 471 (8th Cir. 1994) (citing Boyd v. Groose, 4 F.3d 669,
671 (8th Cir. 1993)). Because Red Kettle has no constitutional right to
appointment of counsel in his habeas proceeding (see Phelps v. U.S. Fed. Gov’t,
15 F.3d 735, 737 (8th Cir. 1994)), the court has discretion to determine
whether to appoint counsel. Sullivan v. Lockhart, 958 F.2d 823, 826 (8th Cir.
1992) (citing Ferguson v. Jones, 905 F.2d 211, 213-14 (8th Cir. 1990)). Refusal
by the court to appoint counsel to assist petitioner in presenting a federal
habeas motion does not violate petitioner’s constitutional rights. Hull v.
Swenson, 431 F.2d 1194, 1195 (8th Cir. 1970). Red Kettle is not entitled to
appointment of counsel to assist him in pursuing federal habeas relief. Red
Kettle appeared capable of presenting and articulating his claim to this court.
Thus, this court finds that it is not in the interests of justice to appoint counsel
to assist Red Kettle.
CERTIFICATE OF APPEALABILITY
Before denial of a § 2255 motion may be appealed, a movant must first
obtain a certificate of appealability from the district court. Miller-El v. Cockrell,
537 U.S. 322, 335-36 (2003). A certificate may be issued “only if the applicant
has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(2). A “substantial showing” is one that demonstrates “reasonable

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jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court
finds that Red Kettle has not made a substantial showing that the district
court’s assessments of his claims are debatable or wrong. Consequently, a
certificate of appealability is not issued.
Thus, it is
ORDERED that Red Kettle’s motion shall be construed as a motion
under 28 U.S.C. § 2255;
IT IS FURTHER ORDERED that Red Kettle’s motion under 28 U.S.C.
§ 2255 (Docket 1) is dismissed;
IT IS FURTHER ORDERED that Red Kettle’s motion for the appointment
of counsel (Docket 7) is denied.
IT IS FURTHER ORDERED that a certificate of appealability is not
issued.
IT IS FURTHER ORDERED that Red Kettle’s Motion for Judicial Notice
(Docket 4) is denied as moot.
IT IS FURTHER ORDERED that Attorney General of the State of South
Dakota’s Motion to Dismiss (Docket 8) is granted.
DATED this 16th day of October, 2017.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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