Eric Randall Nance, Petitioner/appellee, v. Larry Norris, Director, Arkansas Department of Correction, Respondent/appellant, 429 F.3d 1194 (8th Cir. 2005)

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US Court of Appeals for the Eighth Circuit - 429 F.3d 1194 (8th Cir. 2005) Submitted: November 22, 2005
Filed: November 22, 2005
Rehearing and Rehearing En Banc Denied November 28, 2005. *

Appeal from the United States District Court for the Eastern District of Arkansas.

Bruce David Eddy, Federal Public Defender's Office, Craig Lambert, Little Rock, AR, for Petitioner/Appellee.

Eric Randall Nance, Grady, AR, pro se.

Kelly Kristine Hill, Attorney General's Office, Little Rock, AR, for Respondent/Appellant.

Before ARNOLD, BEAM, and MELLOY, Circuit Judges.


Before the court is respondent's motion to vacate a stay of execution entered by the district court. We grant the motion and vacate the stay.

On November 14, 2005, petitioner filed a pleading captioned "Petition for Writ of Habeas Corpus" accompanied by a motion for stay of execution. The district court construed the petition as a requested amendment to the previously filed1  petition in district court, case number: 5:00-CV-00339 ("CV-00339"). The district court, after making findings of fact and conclusions of law, granted a motion to amend the habeas corpus petition, and granted the stay of execution.

On January 24, 2005, petitioner filed a petition to remand in CV:00339 seeking the same relief sought in the present filings. Construing the motion to remand as a motion to file a successive 28 U.S.C. § 2244 habeas petition, we denied the motion. We view the present filings as yet another attempt to avoid the requirements of 28 U.S.C. § 2244(b) (3) (A).

Accordingly, we deny a motion for interlocutory appeal, vacate the district court's stay of execution and dismiss the petition for habeas corpus.


Judge Bye would grant the Petition for Rehearing En Banc


On January 23, 2003, the district court denied habeas relief and dismissed CV-00339. We affirmed this action on December 10, 2004. Our mandate issued on October 12, 2005. The case is closed