Gomez v. Mattson et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DANIEL JOSE GOMEZ, 4:21-CV-04177-RAL
Petitioner,
vs.
MICHAEL MATTSON;JERRY MILLER,
UNION COUNTY STATES ATTORNEYS
OFFICE; ATTORNEY GENERAL FOR THE
STATE OF SOUTH DAKOTA,
ORDER GRANTING PLAINTIFF'S
MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYMENT OF FEES AND
DISMISSING CASE
Respondents.
Petitioner Daniel Jose Gomez filed a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. Doc. 1. Gomez moves for leave to proceed without prepayment offees and filed a
prisoner trust account report. Docs. 2, 3. Gomez also moves to appoint counsel and to join this
case with several other cases. Docs 5,6.
I. Motion for Leave to Proceed Without Prepayment of Fees
Gomez moves for leave to proceed without prepayment offees and filed a prisoner trust
account report. Docs. 2, 3. Gomez's prisoner trust account report shows average monthly
deposits for the past six months of$100.00 and an average monthly balance for the past six
months of $6.09. Doc. 3. Accordingly, the Court finds that Gomez is indigent and grants his
motion for leave to proceed in forma pauperis. This Court also waives the $5 filing fee.
II. Petition for a Writ of Habeas Corpus under 28 U.S.C.§ 2254
A. Procedural History
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Gomez has filed a prior habeas petition under 28 U.S.C. § 2254 challenging the
conviction he seeks to challenge in his present petition. See Gomez v. Doolev. 4:21-CV-04085,
Doc. 1. This Court found that it did not have subject-matter jurisdiction over Gomez's prior
petition because he was no longer in state custody when he filed it. Gomez v. Doolev. 4:21-CV-
04085, Doc. 14 at 3.
Gomez filed the current § 2254 petition on November 1,2021. Doc. 1. Gomez raises
I
several claims contesting his 2008* conviction for second-degree escape in violation of South
Dakota law and his present-day habitual offender status resulting from his 2008 conviction. Id at
4-16.
B. Discussion
Rule 4 ofthe Rules Governing Section 2254 Cases states in pertinent part:
The clerk must promptly forward the petition to a judge under the court's
assignment procedure, and thejudge must promptly examine it. Ifit plainly appears
from the petition and any attached exhibits that the petitioner is not entitled to relief
in the district court,thejudge must dismiss the petition and direct the clerk to notify
the petitioner. If the petition is not dismissed, the judge must order the respondent
to file an answer, motion, or other response within a fixed time, or to take other
action the judge may order.
This Court's preliminary review, required by Rule 4,reveals Gomez's current § 2254 petition is
a second or successive petition and should be dismissed.
28 U.S.C. § 2244 states:
(a)No circuit or districtjudge shall be required to entertain an application for a writ
of habeas corpus to inquire into the detention ofa person pursuant to ajudgment of
the court of the United States if it appears that the legality of such detention has
been determined by a judge or court of the United States on a prior application for
a writ of habeas corpus, except as provided in section 2255.
• Gomez does not indicate the date ofthe conviction that he is challenging in his habeas petition.
Doc. 1 at 1. In his prior habeas petition, he indicated that the date ofthe conviction was
September 22,2008. Gomez v. Doolev. 4:21-CV-04085, Doc. 1 at 1.
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(3)(A) Before a second or successive application permitted by this section is filed
in the district court, the applicant shall move in the appropriate court of appeals for
an order authorizing the district court to consider the application.
Similarly, Rule 9 of the Rules Governing § 2254 Cases in the United States District Courts
states,"Before presenting a second or successive petition, the petitioner must obtain an order
from the appropriate court of appeals authorizing the district court to consider the petition as
required by 28 U.S.C. § 2244(b)(3) and (4)." Further,
AEDPA [the Antiterrorism and Effective Death Penalty Act of 1996]
greatly restricts the power of federal courts to award relief to state prisoners who
file second or successive habeas corpus applications. If the prisoner asserts a claim
that he has already presented in a previous federal habeas petition, the claim must
be dismissed in all cases. § 2244(b)(1). And if the prisoner asserts a claim that was
not presented in a previous petition, the claim must be dismissed unless it falls
within one of two narrow exceptions. One of these exceptions is for claims
predicated on newly discovered facts that call into question the accuracy ofa guilty
verdict. § 2244(b)(2)(B). The other is for certain claims relying on new rules of
constitutional law. § 2244(b)(2)(A).
Tvler V. Cain. 533 U.S. 656, 661-62(2001).
In the current petition, Gomez challenges his 2008 conviction for second-degree escape.
See Doc. 1 at 1. He argues that the application ofthis conviction to South Dakota's habitual
offender statutes exposes him to double jeopardy by punishing him twice for the same crime and
that the filing of a recent Part II habitual information including his conviction for escape opens
the door to challenging that conviction. Id. at 4-13. He claims that his court appointed counsel
were ineffective in advising him to plead guilty and in challenging his conviction in a state
habeas proceeding. See id. at 14-15. He alleges that South Dakota First Judicial Circuit Court
Judge Arthur L. Rusch, the Department of Corrections, and the Army Reserves conspired to
prevent him from filing an appeal to his initial state habeas action. See Id. at 13. He also alleges
that Union County State's Attorney Jerry Miller and his court appointed counsel Michael J.
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McGill conspired to deprive him of his constitutional rights by obtaining an involuntary guilty
plea and that this conspiracy was later joined by Judge Arthur L. Ruseh and his court appointed
counsel Phillip D. Peterson. See id at 14. He claims that he was deprived of his right to defend
against allegations and to cross examine and question witnesses by the South Dakota State
Attorney General, the Mirmehaha County State's Attorney's Offiee, the Union County State's
Attorney's Offiee, the Mirmehaha County Second Judicial Circuit Court, his court appointed
counsel Mark Kadi, Julie Hoffer of the Minnehaha County Public Advocate's Office, and the
Mirmehaha County Publie Defender's Offiee. Id at 15. He also claims that the State of South
Dakota and its employees and entities have violated his right to due process. Id at 16. Some, but
not all, ofthese elaims appear in Gomez's prior habeas petition. S^ Gomez v. Doolev,4:21-CV-
04085, Doc. 1 at 4-8.
Gomez's prior petition regarding his 2008 escape conviction was dismissed by this Court
on the merits. Gomez v. Doolev. 4:21-CV-04085, Doc. 14. Gomez had been diseharged from
Department of Corrections custody on April 8, 2014, and he was no longer in custody when he
filed his petition. Id at 3. This Court explained that "[a] federal eourt does not have subject
matter jurisdiction 'once the sentenee for a eonviction has eompletely expired' beeause the
petitioner does not have a habeas eorpus remedy." Id at 2-3 (quoting Hogan v. Iowa,952 F.2d
224, 225 (8th Cir. 1991).
Thus, this aetion is barred beeause it is a second or successive habeas eorpus petition.
Although some of Gomez's elaims are new and may fall under the exeeptions in § 2244(b)(2),
this Court has no jurisdietion over his petition without an order from the Eighth Circuit Court of
appeals authorizing this Court to hear the petition. 28 U.S.C. § 2244(b)(3)(A). Gomez has made
no showing that he received permission from the Eighth Cireuit to file a seeond or subsequent
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writ of habeas corpus as required by § 2244(b)(3)(A). As a result, this Court is without
jurisdiction to consider petitioner's request for relief. Williams v- Hopkins, 130 F.3d 333, 336
(8th Cir. 1997).
C. Order
Accordingly, it is
ORDERED that Gomez's motion for leave to proceed without prepayment offees. Doc. 2,
is granted. It is further
ORDERED that Gomez's petition for a writ ofhabeas corpus under 28 U.S.C. § 2254,Doc.
1, is dismissed with prejudice and no certificate of appealability will be issued. It is further
ORDERED that Gomez's motions to appoint counsel and to join cases. Docs. 5 and 6, are
denied as moot.
DATED this day of November, 2021.
BY THE COURT:
ROTERTO A L^IG^^
CHIEF JUDGE
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