Eric Randall Nance v. Larry Norris

• Court: Court of Appeals for the Eighth Circuit
• Decided: November 22, 2005
• Docket: 05-4090
• Status: Published

Opinion

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________

No. 05-4090 ___________

Eric Randall Nance, * * Petitioner/Appellee, * * Appeal from the United States v. * District Court for the Eastern * District of Arkansas Larry Norris, Director, * Arkansas Department of * [PUBLISHED] Correction, * * Respondent/Appellant. * ___________

Submitted: November 22, 2005 Filed: November 22, 2005 ___________

Before ARNOLD, BEAM, and MELLOY, Circuit Judges. ___________

PER CURIAM.

Before the court is respondent's motion to vacate a stay of execution entered by the district court. We grant the motion and vacate the stay.

On November 14, 2005, petitioner filed a pleading captioned "Petition for Writ of Habeas Corpus" accompanied by a motion for stay of execution. The district court construed the petition as a requested amendment to the previously filed1 petition in district court, case number: 5:00-CV-00339 ("CV-00339"). The district court, after making findings of fact and conclusions of law, granted a motion to amend the habeas corpus petition, and granted the stay of execution.

On January 24, 2005, petitioner filed a petition to remand in CV:00339 seeking the same relief sought in the present filings. Construing the motion to remand as a motion to file a successive 28 U.S.C. § 2244 habeas petition, we denied the motion. We view the present filings as yet another attempt to avoid the requirements of 28 U.S.C. § 2244(b)(3)(A).

Accordingly, we deny a motion for interlocutory appeal, vacate the district court's stay of execution and dismiss the petition for habeas corpus. ______________________________

1 On January 23, 2003, the district court denied habeas relief and dismissed CV- 00339. We affirmed this action on December 10, 2004. Our mandate issued on October 12, 2005. The case is closed.

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