United States District Court, D. South Dakota, Western Division
BYRON K. RED KETTLE, Petitioner,
WARDEN DARIN YOUNG, Respondent.
ORDER GRANTING PETITIONER’S MOTION TO PROCEED
IN FORMA PAUPERIS AND GRANTING RESPONDENT’S MOTION TO
E. SCHREIER UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
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
Motion to Proceed In Forma Pauperis
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)).
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
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