United States District Court, E.D. Arkansas, Pine Bluff Division
OPINION AND ORDER
J. LEON HOLMES, District Judge.
Terrick Nooner is a death row inmate at the Varner Supermax Unit of the Arkansas Department of Correction. He has filed a petition under 28 U.S.C. § 2254 seeking to set aside his 1993 conviction for capital murder.
In one of Nooner's previous cases, United States Magistrate Judge J. Thomas Ray related the history of Nooner's litigation:
Since 1995, Petitioner has filed thirty-two § 1983 actions and eleven habeas actions.... [A]t least three of Petitioner's habeas actions have been dismissed as successive.
In the current habeas action, Petitioner challenges the constitutionality of a September 1993 capital murder conviction he received in Pulaski County, Arkansas, and a November 1993 aggravated robbery conviction he received in Saline County, Arkansas.... However, Petitioner has previously challenged his September 1993 capital murder conviction in the following habeas actions: (1) Nooner v. Norris, 5:96CV00495; and (2) Nooner v. Norris, 5:97CV00228. Similarly, Petitioner has previously challenged his November 1993 aggravated robbery conviction in the following habeas actions: (1) Nooner v. Norris, 5:95CV00422; (2) Nooner v. Norris, 5:97CV00228; (3) Nooner v. Norris, 5:99CV00431; and (4) Nooner v. Norris, 5:01CV00169.
Nooner v. Norris, E.D. Ark. 4:03CV00450 SMR/JTR, Document #21 at 1-2. Judge Ray thereafter recommended that Nooner's petition be dismissed without prejudice so that he could obtain permission from the United States Court of Appeals for the Eighth Circuit to file a second or successive petition. The Court adopted Judge Ray's recommendation. Nooner subsequently obtained permission from the Eighth Circuit to file a second or successive petition, and he again challenged his murder conviction in Nooner v. Norris, No. 5:08CV00003-JLH. See Nooner v. Hobbs, 689 F.3d 921 (8th Cir. 2012). Thus, Nooner has previously filed three petitions challenging his murder conviction under 28 U.S.C. § 2254 and four previous petitions challenging his robbery conviction.
Before a second or successive application for habeas relief may be sought, the applicant must move in the appropriate court of appeals for an order authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3)(A). A later petition is successive if it raises a claim challenging the petitioner's conviction or sentence that was or could have been raised in an earlier petition. Crouch v. Norris, 251 F.3d 720, 724 (8th Cir. 2001); see also Morgan v. Javois, 744 F.3d 535, 536-37 (8th Cir. 2013).
Nooner's present grounds for relief are that the proceedings that resulted in his 1993 convictions are barred by the speedy trial statute; that there was a pre-accusation delay by the government; and that the officers who prosecuted him should have been disqualified. The first two grounds for relief obviously could have been raised earlier. As to the third ground for relief, Nooner says that "the federal public defender wouldn't, " Document #2 at 7, which apparently indicates that in his previous habeas cases in which the federal public defender has represented him he asked the federal public defender to raise this issue but that office declined. Thus, it appears that all of Nooner's grounds for relief could have been raised in an earlier petition, which makes this a second or successive petition for which Nooner must obtain permission from the Eighth Circuit.
Terrick Nooner's petition for relief under 28 U.S.C. § 2254 is dismissed without prejudice so that Nooner may seek permission from the United States Court of Appeals for the Eighth Circuit to file such a petition. Nooner's application to proceed in forma pauperis is denied as moot. Document #1. Nooner's ...