United States District Court, W.D. North Carolina, Asheville Division
RODNEY A. KOON, Petitioner,
FRANK D. WHITNEY, and BRYAN WELLS, Respondents.
MEMORANDUM OF DECISION AND ORDER
REIDINGER UNITED STATES DISTRICT JUDGE
MATTER is before the Court upon Petitioner's
pro se Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254 [Doc. 1] and Petitioner's
Application to Proceed in District Court without Prepaying
Fees or Costs [Doc. 2].
Rodney A. Koon is a prisoner of the State of North Carolina.
He pled guilty on June 2, 2014, in Buncombe County Superior
Court to two counts of felony death by motor vehicle and one
count of involuntary manslaughter of an unborn child.
[See Koon v. Hooks, No. 1:18-cv-00084-FDW ( N.C.
W.D. filed Apr. 10, 2018), Doc. 17]. He filed the instant
action as a civil complaint on January 19, 2019, in the
United States District Court for the District of Columbia.
[Doc. 1]. Because Petitioner attacks the validity of his
state criminal judgment and seeks relief in the form of a
reduced sentence, the D.C. court construed the action as a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 and transferred it to the United States District
Court for the Eastern District of North Carolina. [Doc. 5].
That court in turn transferred the Petition here, because
Buncombe County is located within this Court's
territorial jurisdiction. [Doc. 8 (citing 28 U.S.C. §
STANDARD OF REVIEW
reviewing the Petition, the Court is guided by Rule 4 of the
Rules Governing Section 2254 Cases in the United States
District Courts, which directs district courts to dismiss a
habeas petition when it plainly appears from the petition and
any attached exhibits that the petitioner is not entitled to
relief. Rule 4, 28 U.S.C. foll. § 2254.
begins by alleging that Respondents in this action “in
conspiracy refused to liberally construe [his] executive
clemency petition as a 2254 [habeas] petition challenging his
felony convictions of (2) counts of felony death by motor
vehicle and (1) count of misdomeanor [sic] death of [an]
unborn child.” [Doc. 1 at 1]. He then raises several
challenges to his 2014 convictions, including an ineffective
assistance of counsel claim. [Id. at 1-2].
allegation regarding his “executive clemency
petition” is a reference to a civil complaint he filed
on October 24, 2016, in the Eastern District of North
Carolina, claiming that the defendants named in that action
“in conspiracy neglected or refused to grant
Plaintiff's request for executive clemency to commute his
[2014 Buncombe County] sentences to one (2) year
sentence[.]” [See Koon, No. 1:18-cv-00084-FDW,
Doc. 1]. Upon motion by Petitioner, the Eastern District
subsequently construed the complaint as a petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254 and
transferred it to this Court. [See id., Docs. 12,
Court, Petitioner amended the § 2254 petition, and the
Court dismissed the amended § 2254 petition as untimely
under 28 U.S.C. § 2244(d)(1)(A). [See id.,
Docs. 17, 19]. Thus, what Petitioner refers to here as his
“executive clemency petition” was construed as a
§ 2254 petition in Civil No. 1:18-cv-00084-FDW. [See
id., Doc. 19].
2244(b)(3) of Title 28 of the United States Code expressly
limits a petitioner's ability to attack the same criminal
judgment in multiple collateral proceedings. If a federal
district court denies or dismisses a state prisoner's
§ 2254 petition with prejudice, the prisoner generally
may not file another habeas petition challenging the same
state criminal judgment unless he has obtained permission to
do so from the appropriate federal court of appeals.
See 28 U.S.C. § 2244(b)(3)(A). The district
court does not have jurisdiction to consider the merits of a
successive habeas application in the absence of authorization
from the appropriate federal court of appeals. See Burton
v. Stewart, 549 U.S. 147, 153 (2007) (holding that
failure of petitioner to obtain authorization to file a
“second or successive” petition deprived the
district court of jurisdiction to consider the second or
successive petition “in the first place”);
United States v. Winestock, 340 F.3d 200, 205 (4th
Cir. 2003) (“In the absence of pre-filing
authorization, the district court lacks jurisdiction to
consider an application containing abusive or repetitive
claims.”) (citation omitted).
noted above, Petitioner previously challenged his 2014
criminal judgment by way of a § 2254 petition, which
this Court dismissed as untimely. [Koon, No.
1:18-cv-00084-FDW, Doc. 19]. A dismissal of a habeas petition
as time-barred is a decision on the merits, and any
subsequent habeas petition challenging the same conviction or
sentence is second or successive for purposes of §
2244(b). See In re Rains, 659 F.3d 1274, 1275 (10th
Cir. 2011) (per curiam); Quezada v. Smith, 624 F.3d
514, 519-20 (2d Cir. 2010) (“We hold that dismissal of
a § 2254 petition for failure to comply with the
one-year statute of limitations constitutes an adjudication
on the merits that renders future petitions under § 2254
challenging the same conviction ‘second or
successive' petitions under § 2244(b).”)
(additional internal quotation marks omitted)). Consequently,
the instant habeas Petition is an unauthorized successive
petition under § 2244(b).
has not demonstrated that he has received authorization from
the Fourth Circuit Court of Appeals to file a second or
successive habeas petition challenging his 2014 state
criminal judgment. See 28 U.S.C. §
2244(b)(3)(A). Accordingly, the Court does not have
jurisdiction to consider the merits of the instant habeas
Petition, and it must be dismissed. See Burton, 549
U.S. at 153; Winestock, 340 F.3d at 205.
addition, Frank D. Whitney shall be terminated as a
respondent in this action. Rule 2(a) of the Rules Governing
Section 2254 Cases requires that a petition for writ of
habeas corpus name the person who has immediate custody of
the petitioner as the respondent in the action. Rule 2(a), 28
U.S.C. foll. § 2254; see also Rumsfeld v.
Padilla, 542 U.S. 426, 434-47 (2004) (stating the writ
should be directed to the “person who has the immediate
custody of the party detained, with the power to produce the
body of such party before the court or judge.”). As the
current Chief District Court Judge of the United States