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Pannell v. Superintendent

United States District Court, N.D. Indiana, South Bend Division

May 28, 2015

DAVID PANNELL, Petitioner,
v.
SUPERINTENDENT, Respondent.

OPINION AND ORDER

JON E. DEGUILIO, District Judge.

David Pannell, a pro se prisoner housed at the Indiana State Prison, filed this habeas corpus petition attempting to challenge his 1987 conviction and 60 year sentence by the Marion Superior Court under cause number 49G01-9502-CF-24360. This is not the first time that Pannell has brought a habeas corpus petition challenging that conviction. In Pannell v. Neal, 1:12-CV-1301 (S.D. Ind. filed September 13, 2012), Pannell sought to challenge the same conviction he is challenging here. DE 1 at 2. In that case, the court found the petition was untimely and further explained that even if it had been timely, the grounds raised would not merit habeas corpus relief. Final Judgment was entered on March 19, 2015, and his Rule 59(e) motion was denied on May 5, 2015.

In his prior habeas corpus proceeding, the court addressed the merits of his grounds for relief, but even if it had not, this would still be a successive habeas corpus petition because a "prior untimely petition... is not a curable technical or procedural deficiency but rather operates as an irremediable defect barring consideration of the petitioner's substantive claims." Altman v. Benik, 337 F. 764, 766 (7th Cir. 2003). In this case, to the extent that Pannell is attempting to raise claims that he has previously presented, they must be dismissed because "[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed." 28 U.S.C. § 2244(b)(1). To the extent that he is attempting to raise new claims, this court lacks jurisdiction over such claims unless the court of appeals has authorized the proceeding as required by 28 U.S.C. § 2244(b)(3)(A). "A district court must dismiss a second or successive petition, without awaiting any response from the government, unless the court of appeals has given approval for its filing." Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996) (emphasis in original).

Because Pannell has not obtained authorization from the court of appeals to file a successive petition, this case is DISMISSED for want of jurisdiction.

SO ORDERED.


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