UNITSETDA TDEISS TRCIOCUTR T DISTROIFSC OTU TDHA KOTA CENTRDAILV ISION EARDL.D OWTY, 3: 42-C-V00 301-RAL Petitioner, OPINIAONNDO RDESRC REENAINNDG DISMISPSEITNIGT ION vs. BRENFTL UKWEA,R DETNH;EA TTORNEY GENERAOLF THES TATOEF S OUTH DAKOTA, Respondents. PetiEtaiDro.Dln o ewrfit lyae p de tiftoiro onwhf r aibcteo arsup nuds2e 8Ur . S§. 2C2.5 4 challhein2sg0 i1n2 gc sotucarottne v iicnMt eilolnCesot utnSeto yuD,ta hk oDtoac1... I. BACKGROUFNADC TS ThiiDsso wstfo yu'r§ t2 h2 5p4e ticthiaolnlh ei2ns0g 1is2nt cgao tuecr otn vicDtoiwotnys. filheifidsr psett iftowirro oinfht a bceoarspp uurss tuo2a 8Un .tS §. 2C2.5o 4nN ovem1b8e,r 201133.- CV-30131. T2 h,Ci osDu oircst.s a unOe pdi nainoOdnr ddeirs miDsoswitinyng'i st ial §225p4e tiwtiitohpnor uetj fuodfria cietl oeu xrheas utsactto emr ie med1i3e-sC.V -D3o0c3.2, 26O.nJ anu1a42r,0y 1D 6o,w ftiyhl iessde cpoentdif towirro oinfht a bceoarspp uurss u2a8nt to U.S§. 2C2.5 146.- CV-D3o0c10..T3 h,iC so udrits missesde cD§oo 2nw2dt5py4e' tsia tsi on timbea rr1e6d-.C V-D3o0c10.43 .,D owftiyl heitdsh ipredt iftowirro oinfth abeas corpu purstuo2a 8nU t. S§. 2C2.5 o4nJ u1l0y2, 0 1177.- CV-D3o0c11..T9 h,iC so udrits missed

1C itattdoio ocnusm feinlittenshd c e u rcraewsnietul sl"e D ofocl.l"o bwyte hde documnuebmnetir tn h CeM /EsCyFs tCeimt.a ttdoi oocnusm etnhCteMs / EisCnyF s tem Dowhtayfis l ieondt hcearsi etnsh D ei storfSi ocuDtta hk woitslapl e ctihcfyea nsuem ber beftohr"eeD occi.t"e . Dowty’s third petition as time barred and denied a certificate of appealability. 17-CV-3019, Doe. 5. The United States Court of Appeals for the Eighth Circuit denied Dowty’s application for a certificate of appealability and dismissed his appeal. 17-CV-3019, Doc. 14. Dowty contends that his fourth petition for writ of habeas corpus pursuant to

is “under new U.S. Supreme Court law and new evidence.” Doc. 1 at 4. Dowty attached to his petition two affidavits from Wayne C. Richards averring that he gave false statements to the state, the F.B.1, and the D.C.I. during the investigation of a burglary for which Dowty was convicted. Doc. 1-1 at 5-6. Based on pleadings Dowty submitted to the state habeas court, it

appears he contends that the state trial court lacked jurisdiction to prosecute him based on McGirt v. Oklahoma,

(2020). Id. at 10, 13. II. DISCUSSION Rule 4 of the 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 the judge must promptly examine it. If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge 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 Dowty’s current § 2254 petition is a successive petition that this Court lacks jurisdiction to consider because Dowty did not obtain leave from the United States Court of Appeals for the Eighth Circuit before filing this petition. Section 2244(a) states: No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment 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. Section 2255(h) provides that a successive petition

must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain— (1) newly discovered evidence that, if proven and viewed in the light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. Similarly, Rule 9 of the Rules Governing § 2254 in 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

(b)(3) and (4).” Liberally construing Dowty’s current petition, his claim may rely on both of the narrow exceptions set forth in

(b)(2). But Dowty has not made any showing that he received permission from the United States Court of Appeals for the Eighth Circuit to file a successive writ of habeas corpus as required by

(b)(3)(A) and § 2255(h). Thus, this Court is without jurisdiction to consider Dowty’s fourth petition for writ of habeas corpus. Burton v. Stewart,

(2007). Il. CONCLUSION Accordingly, for the reasons contained herein, it is hereby ORDERED that Dowty’s petition for writ of habeas corpus, Doc. 1, is dismissed without prejudice to Dowty obtaining a permission from the United States Court of Appeals for the Eighth Circuit to file a successive writ of habeas corpus in accordance with

(b)(3)(A)

and § 2255(h). DATED this $day of March, 2024. BY THE COURT:

ROBERTO A. & GE CHIEF JUDGE