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Hawk v. United States

United States District Court, D. South Dakota, Western Division

March 17, 2014

BASIL LOUD HAWK, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

ORDER DISMISSING CASE

LAWRENCE L. PIERSOL, District Judge.

Movant, Basil Loud Hawk, ("Loud Hawk") is an inmate at the United States Penitentiary in Florence, Colorado. He filed a pro se lawsuit styled as a "Motion Challenging the Jurisdiction of the District Court" on February 10, 2014. The motion has properly been construed as a motion to Vacate, Set Aside or Correct Loud Hawk's Sentence pursuant to 28 U.S.C. § 2255.

The Court has taken judicial notice of the file from Loud Hawk's underlying criminal conviction in the United States District Court, Western Division for the District of South Dakota, (CR. 99-50001-1-RHB) and his appeals to the United States Court of Appeals for the Eighth Circuit, United States v. Loud Hawk, 245 F.3d 667 (8th Cir. 2001); Loud Hawk v. United States, United States Court of Appeals for the Eighth Circuit, No. 08-2132. See, Hood v. United States, 152 F.2d 431 (8th Cir. 1946) (federal District Court may take judicial notice of proceedings from another federal District Court); Matter of Phillips, 593 F.2d 356 (8th Cir. 1979) (proper for federal court to take judicial notice of state court pleadings); Green v. White, 616 F.2d 1054 (8th Cir. 1980) (Court of Appeals may take judicial notice of District Court filings).

In his underlying criminal case, Loud Hawk pled guilty to two counts of second degree murder and a single count of using a firearm while committing a violent crime. The District Court, the Honorable Richard Battey, sentenced Loud Hawk to concurrent 60 year terms of imprisonment on the second degree murder convictions and a 10 year consecutive sentence on the firearm conviction. Loud Hawk filed a direct appeal and the Eighth Circuit Court of Appeals affirmed his convictions. United States v, Loud Hawk, 245 F.3d 667 (8th Cir. 2001).

Nearly seven years later Loud Hawk filed his first motion pursuant to 28 U.S.C. § 2255. CR 99-50001, Doc. 69. That motion was dismissed as untimely. Id. Loud Hawk appealed and the Eighth Circuit dismissed the appeal. Loud Hawk v. United States, United States Court of Appeals for the Eighth Circuit, No. 08-2132. Now, nearly fourteen years after his original conviction, Loud Hawk has filed the instant motion claiming the court did not have jurisdiction to impose his sentence.[1]

Section 2255 provides in relevant part:

(h) A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain

(1) newly discovered evidence that, if proven, and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

Section 2244 provides in relevant part:

§2244 Finality of Determination

(a) No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of the court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for writ of habeas corpus, except as provided in section 2255.
(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior ...

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