Bryant v. Yates

Opinion

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS DELTA DIVISION

EARL WAYNE BRYANT PETITIONER Reg #89198-380

V. CASE NO. 2:21-cv-00037-JTK

JOHN P. YATES Warden, FCI Forrest City RESPONDENT

ORDER

Before the Court is Petitioner Earl Wayne Bryant’s (“Bryant”) Motion to Reconsider (DE #24). Bryant is an inmate at Federal Correctional Institution Forrest City Low Unit serving an 84-month sentence for Bank Robbery in violation of 18 U.S.C. § 2113 (a) and (d) out of the United States District Court for the Western District of Texas. See United States v. Bryant, No. 1:17CR201. This Court dismissed Bryant’s Writ of Habeas Corpus under 28 U.S.C. § 2241 without prejudice because he failed to exhaust his administrative remedies (DE #22). For the reasons stated below, the Court perceives Bryant’s Motion for Reconsideration to be a successive habeas petition without prior authorization from the Eighth Circuit, thus requiring denial and dismissal without prejudice. When a habeas petition has been denied and the inmate files a motion that purports to be a Rule 60(b) motion, the district court must first determine whether the motion in fact amounts to a second or successive collateral attack under section 2254. Boyd v. United States, 304 F.3d 813, 814 (8th Cir. 2002). If it does, the petitioner must obtain authorization from the court of appeals in order to proceed. 28 U.S.C. § 2244(b)(3). If the motion is actually a second or successive habeas petition, the district court must dismiss it for failure to obtain authorization from the court of appeals or transfer to the court of appeals. Boyd, 304 F.3d at 814. A motion that attacks a federal court’s previous resolution of a habeas claim on the merits is a second or successive habeas petition, whereas a motion that “attacks, not the substance of the federal court’s resolution of a claim, but some defect in the integrity of the federal habeas proceedings[,]” is not a second or

successive habeas petition but rather an appropriate Rule 60(b) motion. Gonzales v. Crosby, 545 U.S. 524, 532, 125 S. Ct. 2641, 2648, 162 L. Ed. 2d 480 (2005). Bryant’s accusation that this Court unilaterally bypassed final review of the final order by a District Judge is without merit (DE #24). Bryant consented to have this Court conduct all proceedings in this case including trial, the entry of final judgment, and all post-trial proceedings. (DE #16). Lastly, Bryant’s Motion attacks this Court’s previous resolution of a habeas claim on the merits, thus it is a second or successive habeas petition without the authorization from the Court of Appeals. Bryant’s Motion is DENIED. I. Certificate of Appealability Under Rule 11 of the Rules Governing Section 2254 Cases (which applies to cases under

§ 2241 as well), the court must issue or deny a certificate of appealability when entering a final order adverse to a petitioner. The question is whether “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations and citations omitted). Bryant has not made a substantial showing of a denial of a constitutional right, so no certificate will issue. II. Conclusion IT IS THEREFORE ORDERED THAT: 1. Petitioner’s Motion to Reconsider which this Court perceives to be a successive petition under § 2241, Doc. 1, is DISMISSED WITHOUT PREJUDICE. 2. A Certificate of Appealability is DENIED. See 28 U.S.C. § 2253(c)(1)-(2); Rule 11(a), Rules Governing § 2254 Cases in United States District Courts. IT IS SO ORDERED this 8th day of November, 2021.

JEROMET.KEARNEY UNITED STATES MAGISTRATE JUDGE