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Holt v. Hemigartner

United States District Court, D. Kansas

April 29, 2014

STANTON S. HOLT, Petitioner,
v.
JAMES HEMIGARTNER, et al., Respondents.

MEMORANDUM AND ORDER

SAM A. CROW, Senior District Judge.

This pro se petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2254 by a Kansas prison inmate. Petitioner has filed a Motion for Leave to Proceed in forma pauperis together with the requisite financial information, which indicate that the motion should be granted. Having examined the materials filed together with pertinent court records, the court finds as follows.

BACKGROUND

Mr. Holt was convicted upon trial by jury in Geary County District Court, Junction City, Kansas, of numerous crimes including two counts of first degree murder, aggravated burglaries and robberies, and various other crimes. He was sentenced in April 1994 to "Life plus Life plus 123 to 355 years" in prison. He appealed directly to the Kansas Supreme Court, which affirmed in 1997.

The court takes judicial notice of its Order filed on April 23, 2004 (Doc. 3) in Holt v. Roberts, Case No. 04-3102-SAC (D.Kan.)(June 8, 2004) and the procedural history set forth therein:

Petitioner filed a motion for post-conviction relief under K.S.A. 60-1507 on March 7, 1997. While this pre-AEDPA post-conviction motion was pending in the state courts, petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. See Holt v. Hannigan, Case No. 98-3039-DES (filed February 4, 1998). The state court's denial of relief... became final on February 28, 1999, when the Kansas Supreme Court denied review.... The federal court denied petitioner's 2254 application on the merits by a memorandum and order entered on March 14, 2001. On December 10, 2001, the Tenth Circuit Court of Appeals denied petitioner's application for a certificate of appealability and dismissed petitioner's appeal.
On January 28, 2002, petitioner filed a second post-conviction motion under K.S.A. 60-1507. The state district court summarily denied the motion as presenting issues similar to those raised in petitioner's earlier post-conviction motion. The Kansas Court of Appeals reviewed the three issues raised on appeal, and affirmed the state court's denial of two of petitioner's claims. The state appellate court granted relief on petitioner's third claim, vacating petitioner's conviction and sentence on a count that had been dismissed prior to trial. Holt v. State, 80 P.3d 1201 (2003)(unpublished opinion).

Id. at 1-2. On March 29, 2004, Mr. Holt filed his second federal habeas corpus petition (Case No. 04-3102) "raising the same three grounds asserted in his second (state) post-conviction motion." Id. at 1. This court cited AEDPA provision 28 U.S.C. § 2244(b)(3)(A) requiring that before a petitioner files a second and successive 2254 petition, he obtain an order from the appropriate Court of Appeals authorizing the district court to consider the application.[1] Mr. Holt was ordered to show cause why his 2004 petition should not be transferred to the United States Court of Appeals as a second and successive application or dismissed as time barred. On June 8, 2004, the matter was transferred to the Tenth Circuit for consideration of preauthorization. On August 10, 2004, in Appellate Case No. 04-3213, the Tenth Circuit denied Holt's "petition for permission to file successive habeas petition in district court."[2]

CLAIMS

Petitioner alleges seven vague grounds and makes a myriad of claims that are not logically grouped thereunder. Many if not all are claims that he has raised previously such as "no true litigation on the merits" of his claims, all his "appeals" erroneously denied, prosecutorial misconduct, "defective multiplictous (sic) complaint, " double jeopardy, trial court abused its discretion in denying his motion for new trial "under DNA Forensic Testing" and based on newly discovered evidence, and ineffective assistance of court-appointed trial counsel and counsel in state collateral proceedings.

DISCUSSION

This action is another second and successive 2254 application filed by Mr. Holt. As he was previously advised, 28 U.S.C. § 2244(3)(A) requires that:

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.

There is no indication that Mr. Holt complied with the provisions of § 2244(b)(3)(A) and moved in the Tenth Circuit Court of Appeals for an order authorizing this court to consider his successive 2254 application before he filed this action. As a result, this court lacks jurisdiction to address the merits of any § 2254 claim asserted in this Petition. In re Cline, 531 F.3d ...


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