Bell v. North Dakota

• Decision Date: 29 July 2008
• Docket Number: Case No. 1:08-cv-022.
• Citation: 567 F.Supp.2d 1130
• Parties: Kyle BELL, Petitioner, v. State of NORTH DAKOTA, Respondent.
• Court: U.S. District Court — District of North Dakota

Page 1130

567 F.Supp.2d 1130

Kyle BELL, Petitioner, v. State of NORTH DAKOTA, Respondent.

Case No. 1:08-cv-022.

United States District Court, D. North Dakota, Southwestern Division.

July 29, 2008.

Kyle Bell, Florence, CO, pro se.

Ken R. Sorenson, Attorney General's Office, Bismarck, ND, for Respondent.

ORDER GRANTING STATE OF NORTH DAKOTA'S MOTION TO DISMISS AND DENYING PETITION FOR WRIT OF HABEAS CORPUS

DANIEL L. HOVLAND, Chief Judge.

I. BACKGROUND

In 1995, the petitioner, Kyle Bell, pled guilty in Cass County, North Dakota, District Court to two counts of gross sexual imposition and two counts of using a minor in a sexual performance, all class B felonies. See Docket No. 11, ex. 1. Bell attempted to withdraw his pleas of guilty but his request was denied by the state trial court. On November 30, 1995, the North Dakota Supreme Court affirmed the trial court's refusal to allow Bell to withdraw his guilty pleas and also affirmed the conviction and the trial court's imposition of consecutive ten-year prison terms on three of the offenses and supervised probation on the fourth offense. State v. Bell, 540 N.W.2d 599, 600-601 (N.D.1995).

In February 1996, Bell sought post-conviction relief. The trial court dismissed his application and an appeal followed. The North Dakota Supreme Court affirmed the trial court. Bell v. State, 575 N.W.2d 211 (N.D.1998). Bell then filed a second application for post-conviction relief which the trial court dismissed, and Bell appealed to the North Dakota Supreme Court. On November 2, 2001, the Supreme Court affirmed the trial court's dismissal of the second application for postconviction relief. Bell v. State, 639 N.W.2d 706 (N.D.2001).

In 1998, Bell was charged in North Dakota state court with the murder of Jeanna North. The murder occurred on or about June 28, 1993, in Cass County, North Dakota. In August 1999, a jury found Bell guilty of the murder of North. Bell was. sentenced to life imprisonment but is eligible for parole after thirty years. See Docket No. 11, ex. 6. Bell appealed the murder conviction but he escaped while the appeal was pending. Thereafter, the trial court dismissed the appeal. On March 21, 2000, the North Dakota Supreme Court upheld the dismissal based on the fugitive dismissal rule. State v. Bell, 608 N.W.2d 232 (N.D.2000).

Bell then applied for post-conviction relief on the murder conviction. The trial court summarily dismissed Bell's post-conviction application and another appeal followed. On December 5, 2004, the North Dakota Supreme Court affirmed the dismissal. Bell v. State, 636 N.W.2d 438 (N.D.2001).

In 1998, Bell filed a petition in federal court for habeas corpus relief under 28 U.S.C. § 2254 to challenge the state court convictions on the charges of gross sexual, imposition and using a minor in a sexual performance. This Court denied the petition. See Bell v. State of North Dakota, A1-98-078 (sealed file). In 2002, Bell filed another petition for Section 2254 relief challenging the same convictions. See Bell v. Schuetzle, United States Dist. Court No. 1:02-cv-07 (A1-02-007). This Court required Bell to comply with the second or successive petition requirements of 28 U.S.C. § 2244 and apply to the Eighth Circuit Court of Appeals for permission to file a second or successive application. The Court of Appeals denied the application. See Bell v. Schuetzle, Eighth Circuit Court of Appeals, Case No. 02-1439; Doc. No. 9.

In 2002, Bell also filed a separate application for Section 2254 relief challenging his murder conviction. This action was filed at the same time Bell filed an application challenging the convictions on the charges of gross sexual imposition and using a minor in a sexual performance. Bell v. Schuetzle, United States Dist. Court No. 1:02-cv-08 (A1-02-008). Bell's petition challenging the murder conviction contained eleven different claims. The federal magistrate judge determined that part of one of the claims failed to allege a constitutional violation, part of one claim and four other claims were unexhausted, and ten of the claims and part of one claim were procedurally barred. See Docket No. 11, ex. 9. This Court adopted the Report and Recommendation and judgment was entered accordingly on September 11, 2002. See Docket No. 11, ex. 10. No appeal was taken from that judgment.

Finally, on February 7, 2008, Bell filed the current petition for a writ of habeas corpus under 28 U.S.C. § 2254 to challenge his incarceration at the United States Penitentiary in Florence, Colorado.

II. LEGAL DISCUSSION

A. THE DISTRICT COURT LACKS JURISDICTION TO CONSIDER BELL'S PETITION WHICH IS BARRED AS A SECOND OR SUCCESSIVE PETITION UNDER 28 U.S.C. § 2244

Habeas corpus proceedings in federal court are civil actions contesting the legality of restraint on one's personal liberty when circumstances are presented which demonstrate the infringement of important constitutional rights. Grant v. Swenson, 313 F.Supp. 1117 (E.D.Mo.1970). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs these post-conviction proceedings. 28 U.S.C. § 2244. Bell's present petition for a writ of habeas corpus was filed on February 7, 2008. Bell is a state prisoner challenging the execution of his sentence. It is undisputed that the petition is subject to the provisions of the AEDPA, including the second or successive petition prohibitions and the one-year statute of limitations. See 28 U.S.C. § 2244(b) and (d).

As noted above, Bell's state court convictions for which he is now incarcerated in federal prison have been the subject of prior habeas petitions. This Court adopted a Report and Recommendation and dismissed Bell's last Section 2254 application in September 2002. The claims were unexhausted and procedurally barred. The Court also denied the issuance of a certificate of appealability. See Docket No. 11, ex. 10. A dismissal on the grounds of procedural default constitutes a decision on the merits. Therefore, Bell's present petition for habeas relief is a second or successive petition. Shaw v. Delo, 971 F.2d 181, 184 (8th Cir.1992); Graham v. Costello, 299 F.3d 129, 133 (2d Cir.2002); In re Cook, 215 F.3d 606, 608 (6th Cir. 2000); Carter v. United States, 150 F.3d 202, 205-06 (2d Cir.1998).

The AEDPA imposes three basic requirements on successive habeas petitions: first, any claim that has already been adjudicated in a previous petition must be dismissed; second, any new claim that was not already adjudicated must be dismissed unless it relies on a new and retroactive rule of constitutional law or new facts showing a high probability of actual innocence; and, finally, before a district court can accept a successive habeas petition, the court of appeals must determine that it presents a claim not previously raised that is sufficient to meet AEDPA's new-rule or actual-innocence provisions. Williams v. Chatman, 510 F.3d 1290 (11th Cir.2007).

28 U.S.C. § 2244(b)(1) requires that before a second or successive petition is filed in federal district court, 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). It is clear and undisputed that Bell's petition is subject to the gate-keeping requirements of 28 U.S.C. § 2244(b)(3) and (4).

28 U.S.C. § 2244(b)(3)(C) allows a court of appeals to authorize the filing of a second or successive habeas petition only if it determines that the petitioner makes a prima facie showing that the application satisfies the requirements of this subsection.

AEDPA greatly restricts the power of federal courts to award relief to state prisoners who file second or successive habeas corpus applications. If the prisoner asserts a claim that he has already presented in a previous federal habeas petition, the claim must be dismissed in all cases. § 2244(b)(1). And if the prisoner asserts a claim that was not presented in a previous petition, the claim must be dismissed unless it falls within one of two narrow exceptions. One of these exceptions is for claims predicated on newly discovered facts that call into question the accuracy of a guilty verdict. § 2244(b)(2)(B). The other is for certain claims relying on new rules of constitutional law. § 2244(b)(2)(A).

Tyler v. Cain, 533 U.S. 656, 661-62, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001).

"Under § 2244(b), the first step of analysis is to determine whether a `claim presented in a second or successive habeas corpus application' was also `presented in a prior application.' If so, the claim must be dismissed; if not, the analysis proceeds to whether the claim satisfies one of two narrow exceptions." Gonzalez v. Crosby, 545 U.S. 524, 530, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). Bell now asserts some claims that were not presented in his previously dismissed petition from 2002 challenging his murder conviction, and from which no appeal was taken. Therefore, the analysis proceeds to whether his present claim satisfies the exceptions set forth in 28 U.S.C. § 2244(b)(2)(A) or § 2244(b)(2)(B).

Prior to the enactment of the AEDPA, the United States Supreme Court stated that a habeas petitioner who files a writ of habeas corpus abuses the writ if he raises new claims in a current petition that could have been raised in the first petition. McCleskey v. Zant, 499 U.S. 467, 489, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). "[T]he interpretation of `second or successive' involves the application of pre-AEDPA abuse-of-the-writ principles." Crouch v. Norris, 251 F.3d 720, 723 (8th Cir.2007) (citing Stewart v. Martinez-Villareal, 523 U.S. 637, 643-45, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998)). The Eighth Circuit has stated as follows:

Second, § 2244(b)(2) provides that claims that were not presented in the earlier habeas application "shall be dismissed" unless they rely on a new, retroactive, previously unavailable rule of constitutional law, or unless their factual...