Herron v. Payne

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

JERRY HERRON PETITIONER VS. NO. 4:21-CV-00587-BRW-ERE DEXTER PAYNE, Director, ADC RESPONDENT ORDER

Before the Court is Petitioner Jerry Herron’s 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus. Doc. 1.

On February 27, 2007, Mr. Herron filed 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus involving the same conviction being attacked in the current petition. Herron v. Norris, No. 5:07-CV-00039-HDY. That case was dismissed on May 11, 2007. Accordingly, this is a successive petition.

“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.” See 28 U.S.C. § 2244(b)(3)(A). Because Ms. Davis is in custody in Arkansas, the Eighth Circuit Court of Appeals is the appropriate court to grant permission to file such a successive § 2254 habeas action. Until and unless Petitioner obtains the required authorization from the Eighth Circuit, this Court lacks jurisdiction to consider another habeas petition. Burton v. Stewart, 549 U.S. 147, 152-53, 157 (2007). Based on a review of Eighth Circuit’s records, Petitioner has never filed in that Court an application for authorization to file a successive § 2254 petition.

Additionally, Petitioner names “State of Arkansas” and “Wendy Kelly in Her Official Capacity as Director of the Arkansas Department of Correction.” However, the correct Respondent in a habeas action is the officer having custody over Petitioner. See Rumsfield v. Padilla, 542 U.S. 426, 435 (2004) (holding that “the proper respondent is the warden of the facility where the prisoner is being held . . . .”); 28 U.S.C. § 2242 (habeas petition must name “the person who has custody over [the petitioner] and by virtue of what claim or authority”); Rule 2(b), Rules Governing 28 U.S.C. § 2254 Cases. Upon information and belief, Dexter Payne, the Director of the Arkansas Division of Correction, is the correct Respondent. Accordingly, the Court will direct the Clerk of the Court to substitute Mr. Payne as the Respondent.

For the reasons set out above, this case is DISMISSED for lack of jurisdiction. IT IS SO ORDERED this 30th day of June, 2021.

Billy Roy Wilson______________________ UNITED STATES MAGISTRATE JUDGE