United States District Court, S.D. Indiana, Terre Haute Division
JAMES G. WILSON, Petitioner,
STATE OF INDIANA, UNITED STATES, Respondents.
ORDER DISMISSING PETITION, DENYING MOTIONS,
AND DENYING A CERTIFICATE OF APPEALABILITY
R. SWEENEY II, UNITED STATES DISTRICT COURT.
G. Wilson is an Indiana Department of Correction inmate
serving a sentence for attempted murder from Marion County
case number 49G02-1111-FA-080777. Mr. Wilson has challenged
his state conviction and sentence numerous times in federal
court, and in this action again seeks relief. Despite what he
has titled his documents, the relief he seeks - not
specifically set out but certainly implied as he attacks the
state court's jurisdiction or authority to prosecute him
- sounds in habeas corpus. See United States v.
Lloyd, 398 F.3d 978, 980 (7th Cir. 2005) ("Call it
a motion for a new trial, arrest of judgment, mandamus,
prohibition, coram nobis, coram vobis, audita querela,
certiorari, capias, habeas corpus, ejectment, quare impedit,
bill of review, writ of error, or an application for a
Get-Out-of-Jail Card; the name makes no difference. It is
substance that controls." (citing Melton v. United
States, 359 F.3d 855, 857 (7th Cir. 2004)). Because this
action is a successor habeas corpus challenging a state
conviction that has already been challenged in federal court,
this Court has no jurisdiction absent Seventh Circuit
authorization, and therefore must be dismissed. Additionally,
the Court finds that a certificate of appealability should
2014, Mr. Wilson was convicted by jury of attempted murder in
Marion County Superior Court cause number
49G02-1111-FA-080777. On direct appeal, the Indiana Court of
Appeals affirmed the conviction and sentence on June 29,
2015. Wilson v. State, 37 N.E.3d 562, 2015 WL
3941453 (Ind.Ct.App. June 29, 2015) (unpublished). The
Indiana Supreme Court denied transfer on October 5, 2015.
Wilson sought federal habeas relief on several prior
occasions resulting in dismissals without prejudice. On June
15, 2017, Mr. Wilson filed a petition for a writ of habeas
corpus again challenging this 2014 conviction. Wilson v.
Superintendent, 2:17-cv-0282-JMS-MJD. After the petition
was fully briefed, the action was dismissed with prejudice on
March 22, 2018, because it was filed outside the statute of
limitations as set forth in 28 U.S.C. § 2244(d)(1).
See Wilson v. Superintendent, 2:17-cv-0282-JMS-MJD
(S.D. Ind. Mar. 22, 2018). The Court denied Mr. Wilson a
certificate of appealability. Id.
instant habeas action, Mr. Wilson again challenges his state
court conviction in 49G02-111 l-FA-80777. When there has
already been a decision on the merits in a federal habeas
action, to obtain another round of federal 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) (The
Antiterrorism and Effective Death Penalty Act places
"stringent limitations ... on the filing of a second or
successive petition for habeas corpus. . . ."). This
statute, § 2244(b)(3), "creates a
'gatekeeping' mechanism for the consideration of
second or successive [habeas] applications in district
court." Felker v. Turpin, 518 U.S. 651, 657
(1996). "Section 2244(b)(3)(A) is an allocation of
subject-matter jurisdiction to the court of appeals. 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 the
filing." In re Page, 170 F.3d 659, 661 (7th
Cir. 1999) (internal quotation omitted) (emphasis in
Seventh Circuit Court of Appeals has not given prior
authorization for this action. Accordingly, this Court lacks
jurisdiction over Mr. Wilson's petition for a writ of
habeas corpus and it is dismissed for lack of jurisdiction.
Judgment consistent with this Order shall now enter.
the petition is dismissed, Mr. Wilson's motion for leave
to proceed in in forma pauperis, dkt. , is
denied as moot. Mr. Wilson's motion to
proceed on appeal in forma pauperis, dkt. , is
denied as both premature and also because an
appeal from this disposition would be frivolous.
Certificate of Appealability
state prisoner whose petition for a writ of habeas corpus is
denied by a federal district court does not enjoy an absolute
right to appeal. Federal law requires that he first obtain a
certificate of appealability from a circuit justice or judge.
28 U.S.C. § 2253(c)(1). A certificate of appealability
may issue "only if the applicant has made a substantial
showing of the denial of a constitutional right." 28
§ 2253(c)(2). At the certificate of appealability stage,
the only question is whether the applicant has shown that
"jurists of reason could disagree with the district
court's resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further." Miller-El
v. Cockrell, 537 U.S. 322, 336 (2003). The Court finds
that jurists of reason could not disagree with this
Court's resolution of this action, and that the issue
here does not warrant encouragement to proceed further.
Buck v. Davis, ___ U.S. ___, 137 S.Ct. 759, 773-74
(2017). The Court therefore denies a
certificate of appealability.