Brown v. Wasmer

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

TERRON BROWN,

Petitioner, 8:20CV343

vs.

MEMORANDUM AND ORDER

STATE OF NEBRASKA, and TODD

WASMER, Warden;

Respondents.

This matter is before me on initial review of Petitioner Terron Brown’s

Amended Petition for Writ of Habeas Corpus (filing 11) brought pursuant to 28

U.S.C. § 2254 to determine whether the claims made by Petitioner are, when

liberally construed, potentially cognizable in federal court. I apply Rule 4 of the

Rules Governing Section 2254 Cases. I now dismiss the petition with prejudice.

Liberally construed, summarized and condensed, Brown claims his due

process and Sixth Amendment rights were violated because the prosecution

appealed his sentence in violation of the terms of his plea agreement and his

counsel failed to place the entire plea agreement on the record, failed to accurately

convey the terms of the plea agreement to Brown, and failed to timely object to the

prosecution’s appeal of the sentence as breaching the plea agreement. In a prior

habeas case in this court, the Honorable Warren K. Urbom resolved similar claims

against Brown. Brown v. State of Nebraska, Case No. 8:10CV236 (D.Neb.) (Filing

31, Aug. 31, 2011 Memorandum and Order dismissing petition with prejudice on

the merits). The decision was affirmed by the Eighth Circuit Court of Appeals, and

Brown’s petition for writ of certiorari was denied by the Supreme Court. (Filings

47 & 50, Case No. 8:10CV236.)

“A claim presented in a second or successive habeas corpus application

under section 2254 that was presented in a prior application shall be dismissed.” 28

U.S.C. § 2244 (b)(1) (emphasis added). See Gonzalez v. Crosby, 545 U.S. 524,

529–30 (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). Brown’s present claims were presented in his prior

habeas petition and must, therefore, be dismissed.

Even if Brown 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. The statutory prohibition against successive petitions by state prisoners is

codified in 28 U.S.C. § 2244, which provides in relevant part:

(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;

or

(B)(i) the factual predicate for the claim could not have been

discovered previously through the exercise of due diligence;

and

(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).

Here, Brown challenges his same 2005 conviction for second degree murder

that he unsuccessfully challenged in Case No. 8:10CV236. Thus, Brown would be

required to seek the permission of the Eighth Circuit 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. Burton v. Stewart, 549 U.S. 147, 152 (2007)

(the district court lacked jurisdiction to entertain habeas petition since prisoner did

not obtain an order authorizing him to file second petition).

Lastly, 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, Brown has failed to make a substantial showing of the denial of

a constitutional right. I am 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, I will not

issue a certificate of appealability in this case.

IT IS THEREFORE ORDERED that the amended habeas corpus petition

(filing 11) is dismissed with prejudice. No certificate of appealability has been or

will be issued in this matter. The court will enter judgment by separate document.

Dated this 25th day of January, 2021.

BY THE COURT:

Kichard F Avy

Richard G. Kopf

Senior United States District Judge