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Red Kettle v. State

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

October 16, 2017

BYRON KEITH RED KETTLE, a/k/a BYRON K. RED KETTLE, Petitioner,
v.
UNITED STATES OF AMERICA and ATTORNEY GENERAL OF THE STATE OF SOUTH DAKOTA. Respondents.

          ORDER DISMISSING CASE

          KAREN E. SCHREIER, UNITED STATES DISTRICT JUDGE

         Plaintiff, 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.

         BACKGROUND

         Red 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.

         In 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.).

         In 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).

         In 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).

         On June 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 authorities.

         Following 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).

         DISCUSSION

         1. Red Kettle's Objection

         “A 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.

         On 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 motion.

         2. ...


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