Embrey v. Sepanek, No. 0:2013cv00133 - Document 3 (E.D. Ky. 2013)

Court Description: MEMORANDUM OPINION & ORDER: 1) Embrey's petition for a writ of habeas corpus DE# 1 and "Request for Judicial Notice DE# 2 are DENIED; 2) The Court will enter an appropriate judgment; 3) This matter is STRICKEN from the active docket. Signed by Judge Henry R. Wilhoit, Jr on 9/17/13.(KSS)cc: Embrey (via US Mail)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION AT ASHLAND WILLIAM J. R. EMBREY, V. WARDEN M. SEPANEK, Respondent. MEMORANDUM OPINION ) Petitioner, ) ) ) ) ) ) ) AND ORDER Civil No. 0: 13-133-HRW ) *** *** *** *** William J. R. Embrey is an inmate confined in the Federal Correctional Institution in Ashland, Kentucky. Proceeding without an attorney, Embrey has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 [D. E. No.1] and a "Request for Judicial Notice." [D. E. No.2] In his petition, Embrey contends that his conviction for being a felon in possession ofa firearm in violation of 18 U.S.C. § 922(g) in United States v. Embrey, No. 6:98-CR003095 (W.D. Mo. 1998) is void because, even as a felon, he had the constitutional right to possess a firearm under the Second Amendment, and because the Due Process Clause of the Fifth Amendment required a hearing before that right could be revoked, an event Embrey contends did not occur. [D. E. No.1, pp. 2-7] Embrey's "Request for Judicial Notice" asks the Court to take judicial notice of the text of the Second and Fifth Amendments, and oflegal conclusions that he perceives to be self-evident from the face of those provisions. [D. E. No.2, pp. 1-2] Embrey has made these same arguments in numerous habeas corpus petitions before this one, without success. As the Court noted in Embrey's last such effort, the Eighth Circuit rejected them on direct appeal; the trial court rejected them and denied him relief under 28 U.S.C. § 2255; and district courts in several states have denied petitions for relief under 28 U.S.C. § 2241 on the same grounds. Embrey v. Sepanek, No. 0:13-20-HRW (E.D. Ky. Mar. 12, 2013). The Court will therefore deny Embrey's latest petition as barred by the abuse of the writ doctrine, 28 U.S.C. § 2244(a); McCleskey v. Zant, 499 U.S. 467, 489 (1991), and as substantively meritless. United States v. Embrey, 250 F.3d 1181, 1184 (8th Cir. 2001). Accordingly, IT IS ORDERED that: 1. William J. R. Embrey's petition for a writ of habeas corpus [D. E. No. 1] and "Request for Judicial Notice" [D. E. No.2] are DENIED. 2. The Court will enter an appropriate judgment. 3. This matter is STRICKEN from the active docket. This the 17th day of September, 2013. 2 SIgned BY' Henry R. 'MIhoit. Jr. United States Dtstnd Judge

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