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Kettle v. Young

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

September 23, 2019

BYRON K. RED KETTLE, Petitioner,
v.
WARDEN DARIN YOUNG, Respondent.

          ORDER GRANTING PETITIONER’S MOTION TO PROCEED IN FORMA PAUPERIS AND GRANTING RESPONDENT’S MOTION TO DISMISS

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

         Petitioner, Byron K. Red Kettle, filed an amended petition for writ of habeas corpus under 28 U.S.C. § 2254. Docket 10. Red Kettle moved for leave to proceed in forma pauperis and provided his prisoner trust account report. Dockets 2, 17. Respondent, Warden Darin Young, filed a motion to dismiss the application for writ of habeas corpus. Docket 14. Red Kettle has also filed motions for recognizance, release, and a protective order. Dockets 4, 5, 8.

         In his amended petition, Red Kettle claims that his trial and appellate counsel were ineffective. Docket 10 at 2-3. Red Kettle alleges that his trial counsel failed to produce evidence of his mental defects so he could obtain a psychiatric expert to aid in his insanity defense. Id. at 4. Red Kettle also claims that his appellate counsel was ineffective when he failed to brief his trial counsel’s ineffectiveness. Id. at 5.

         In his motion for release, Red Kettle claims the 28-year delay in re-sentencing was a “direct violation of due process and equal protection of the law under the Fourteenth Amendment” and thus the state exhaustion requirement of 28 U.S.C. § 2254 is not at issue. Docket 5 at 3. Red Kettle argues this:

28[-]year delay by the state in the process of the state court appeals in the petitioner’s cases for review and relief from the illegal convictions and sentences that are the result of the state’s failure to provide the defendant a fair and speedy trial . . . gives rise under the law to a ‘presumption’ the petitioner has been prejudiced by the state . . . .

Id. at 6.

         LEGAL STANDARD

         Civil rights and pro se complaints must be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir. 2004). Even with this construction, “a pro se complaint must contain specific facts supporting its conclusions.” Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). See also Ellis v. City of Minneapolis, 518 F. App’x 502, 504 (8th Cir. 2013). Civil rights complaints cannot be merely conclusory. Parker v. Porter, 221 F. App’x 481, 482 (8th Cir. 2007); Davis v. Hall, 992 F.2d 151, 152 (8th Cir. 1993).

         A federal court may not consider a claim for relief in a habeas corpus petition if the petitioner has not exhausted his state remedies. See 28 U.S.C. § 2254(b-c). “[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.” O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).

         ANALYSIS

         I. Motion to Proceed In Forma Pauperis

         Under the Prison Litigation Reform Act (PLRA), a prisoner who ''brings a civil action or files an appeal in forma pauperis . . . shall be required to pay the full amount of a filing fee.'' 28 U.S.C. § 1915(b)(1). The court may, however, accept partial payment of the initial filing fee where appropriate. Therefore, ' ''[w]hen an inmate seeks pauper status, the only issue is whether the inmate pays the entire fee at the initiation of the proceedings or over a period of time under an installment plan.' '' Henderson v. Norris, 129 F.3d 481, 483 (8th Cir. 1997) (quoting McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997)).

         The initial partial filing fee that accompanies an installment plan is calculated according to 28 U.S.C. § 1915(b)(1), which requires a payment of 20 percent of the greater of “(A) the average monthly deposits to the prisoner's account; or (B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint or notice of appeal.”

         Red Kettle has reported average monthly deposits to his prisoner trust account of $1.46 and an average monthly balance of negative $132.86. Docket 17 at 1. Thus, the court grants Red Kettle’s leave to proceed in forma pauperis. Based on his ...


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