United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DISCUSSING PETITION FOR WRIT OF HABEAS CORPUS
AND DENYING CERTIFICATE OF APPEALABILITY
J. McKINNEY, JUDGE.
unauthorized second or successive action for habeas corpus
relief pursuant to 28 U.S.C. § 2254(a) is dismissed for
lack of jurisdiction for the same reasons as compelled the
similar dispositions in No. 1:16-cv-1340-SEB-TAB and in No.
1:16-cv-925-SEB-DML. In short, petitioner Charles Holbrook
was convicted on June 1, 2010 of sex offenses in the Kent
(Michigan) Circuit Court in No. 09-008856-FH, his convictions
were affirmed in People v. Holbrook, 2011 WL 5064266
(Mich.Ct.App. Oct. 25, 2011), and his federal habeas petition
was denied as untimely in Holbrook v. Bauman, No.
2:15-CV-131, 2016 WL 80215 (W.D.Mich. Jan. 6, 2016). An
appeal from the denial of federal habeas corpus relief is
pending in the Sixth Circuit as No. 16-2648. A motion for
leave to file a second or successive habeas petition is
likewise pending in the Sixth Circuit as No. 16-2387.
habeas petition in No. 2:15-CV-131 was denied and the action
was dismissed with prejudice. This was a disposition on the
merits. See Pavlovsky v. VanNatta, 431 F.3d 1063,
1064 (7th Cir. 2005)(“The dismissal of a suit as
untimely is a dismissal on the merits, and so should
ordinarily be made with prejudice, barring
relitigation.”); Altman v. Benik, 337 F.3d
764, 766 (7th Cir. 2003) (per curiam) (“We hold today
that a prior untimely [28 U.S.C. § 2254] petition does
count [as an adjudication on the merits] because a statute of
limitations bar is not a curable technical or procedural
deficiency. . . .”).
“prisoner is entitled to one clean shot at establishing
his entitlement to relief in a federal habeas corpus
proceeding.” Pavlovsky v. VanNatta, 431 F.3d
1063, 1064 (7th Cir. 2005). When there has already been a
decision on the merits in a federal habeas action, to obtain
another round of federal collateral review a petitioner
requires permission from the Court of Appeals under 28 U.S.C.
§ 2244(b). See Potts v. United States, 210 F.3d
770, 770 (7th Cir. 2000). Thus, “[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). A
subsequent motion is “second or successive”
within the meaning of the statute when the same underlying
conviction is challenged. See Dahler v. United
States, 259 F.3d 763 (7th Cir. 2001).
§ 2244(b)(3), this Court has no jurisdiction to hear a
second or successive habeas petition without authorization
from the Seventh Circuit Court of Appeals. Burton v.
Stewart, 549 U.S. 147, 152-53 (2007). This statute
“creates a ‘gatekeeping' mechanism for the
consideration of second or successive [habeas] applications
in the district court, ” Felker v. Turpin, 518
U.S. 651, 657 (1996), and “‘is an allocation of
subject-matter jurisdiction to the court of
appeals.'” In re Page, 170 F.3d 659, 661
(7th Cir. 1999) (quoting Nunez v. United States, 96
F.3d 990, 991 (7th Cir. 1996)), opinion supplemented on
denial of rehearing en banc, 179 F.3d 1024 (7th Cir.
petitioner is amply aware of the jurisdictional barrier
created by § 2244(b), but has neither shown nor alleged
that the requisite authorization has been issued. With
Holbrook v. Bauman, No. 2:15-CV-131, having been
adjudicated on the merits, and in the absence of
authorization for the present filing from the Court of
Appeals, the Court lacks jurisdiction to consider the
petition for writ of habeas corpus.
jurisdiction lacking, the Court has no choice but to note
that fact and dismiss the action. See Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83, 94
(1998)(“‘ Jurisdiction is power to declare the
law, and when it ceases to exist, the only function remaining
to the court is that of announcing the fact and dismissing
the cause.'”) (quoting Ex parte McCardle,
7 Wall. 506, 514, 19 L.Ed. 264 (1868)).
petition for writ of habeas corpus is
denied. The action will be dismissed for
lack of jurisdiction, and judgment consistent with this Entry
shall now issue.
to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of
the Rules Governing § 2254 Proceedings, and 28
U.S.C. § 2253(c), the court finds that Holbrook has
failed to show that reasonable jurists would find it
“debatable whether [this court] was correct in its
procedural ruling.” Slack v. ...