Runck v. United States , 762 F. Supp. 1351 ( 1991 )

MEMORANDUM AND ORDER

VAN SICKLE, District Judge.

Clayton Runck, Jr. has filed his third petition for relief under 28 U.S.C. § 2255. He alleges that the plea agreement was breached and that the sentence of restitution is illegal. These claims were made in his first petition and rejected by the Eighth Circuit Court of Appeals. See United States v. Runck, 817 F.2d 470 (8th Cir.1987). He also requests a change in the judgment, which request was made in the second petition, and rejected by this court and summarily affirmed by the Eighth Circuit. To raise the same claims repeatedly constitutes an abuse of the writ. Johnson v. Petrovsky, 626 F.2d 72 (8th Cir.1980). This being the third petition by this individual, the petition constitutes an abuse of the writ, even if the latest petition raises new claims, unless the petitioner shows an excusable failure to raise the claim earlier. McCleskey v. Zant, — U.S. -, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). To show an excusable failure the petitioner must show cause for failing to raise the issue and prejudice arising out of such failure, id. Petitioner here has not done so. Thus, insofar as the allegations may not be identical to those raised before, they also constitute an abuse of the writ.

Accordingly, IT IS ORDERED THAT THE PETITION IS DENIED.