United States District Court, D. South Dakota, Western Division
BYRON KEITH RED KETTLE, a/k/a BYRON K. RED KETTLE, Petitioner,
UNITED STATES OF AMERICA and ATTORNEY GENERAL OF THE STATE OF SOUTH DAKOTA. Respondents.
ORDER DISMISSING CASE
E. SCHREIER, UNITED STATES DISTRICT JUDGE
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.
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.
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. 88-50014-RHB (D.S.D.).
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).
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).
13, 2009, Red Kettle was released from federal custody and
began serving his Nebraska state sentence. See Red Kettle
v. United States, CIV. 8:11CV264 (D. Neb. 2012) at
Docket 12. Currently, he is in the custody of Nebraska
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).
Red Kettle's Objection
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.
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 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