United States District Court, S.D. Indiana, Indianapolis Division
ORDER GRANTING MOTION TO DISMISS PETITION FOR WRIT OF
HABEAS CORPUS AND DENYING CERTIFICATE OF
EVANS BARKER, JUDGE
Marshall Cobb, Sr. is an Indiana state prisoner currently
incarcerated at New Castle Correctional Facility. For the
reasons explained in this Order, the respondent's motion
to dismiss, dkt , is granted and Mr.
Cobb's petition for a writ of habeas corpus must be
denied and the action dismissed for
lack of jurisdiction. In addition, the Court finds
that a certificate of appealability should not issue.
Petition for Writ of Habeas Corpus
Cobb seeks relief from his 2003 Bartholomew County conviction
for child molesting. Mr. Cobb brings this current petition
after having previously challenged his conviction pursuant to
28 U.S.C. § 2254. On October 23, 2009, Mr. Cobb filed a
petition for a writ of habeas corpus in No.
1:09-cv-01318-SEB-MJD. That petition was denied with
prejudice on March 10, 2011. On August 16, 2011, the United
States Court of Appeals for the Seventh Circuit denied Mr.
Cobb's request for a certificate of appealability. Mr.
Cobb argues that his petition is not successive because it is
based on newly discovered evidence.
there has already been a decision on the merits in a federal
habeas action, to obtain another round of federal collateral
review a petitioner must obtain permission from the Court of
Appeals under 28 U.S.C. § 2244(b). See Altman v.
Benik, 337 F.3d 764, 766 (7th Cir. 2003). This statute,
§ 2244(b)(3), “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). It
“‘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. 1999). Therefore, “[a] district
court must dismiss a second or successive petition . . .
unless the court of appeals has given approval for the
Cobb's current § 2254 petition must be summarily
dismissed for lack of jurisdiction because it is a second or
successive action for relief on the same conviction, and
there is no indication that the Court of Appeals has
authorized its filing. This disposition is compelled entirely
apart from whether Mr. Cobb has or lacks a strong case for
filing a successive § 2254 petition. That is a point on
which the Court expresses no opinion and into which it has no
authority to inquire. If Mr. Cobb wishes to pursue his
successor claims, he must file a request to do so in the
Seventh Circuit Court of Appeals. 28 U.S.C. §
corpus has its own peculiar set of hurdles a petitioner must
clear before his claim is properly presented to the district
court.” Keeney v. Tamayo-Reyes, 504 U.S. 1, 14
(1992) (O'Connor, J., dissenting) (internal citations
omitted). Mr. Cobb has encountered the hurdle produced by the
limitation on filing second or successive habeas petitions
without authorization. His petition for a writ of habeas
corpus is therefore dismissed for lack of
consistent with this Order shall now issue.
Certificate of Appealability
“A 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 (COA)] from a
circuit justice or judge. 28 U.S.C. § 2253(c)(1). A COA
may issue ‘only if the applicant has made a substantial
showing of the denial of a constitutional right.' §
2253(c)(2). . . .” Buck v. Davis, __ U.S. __,
137 S.Ct. 759, 773-74 (2017).
the COA 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.”
Id. (citing Miller-El v. Cockrell, 537 U.S. 322, 336
these standards, and pursuant to Federal Rule of Appellate
Procedure 22(b), Rule 11(a) of the Rules Governing Section
2254 Proceedings in the United States District Courts, and 28
U.S.C. § 2253(c), the Court finds that reasonable
jurists would not find it “debatable whether [this
Court] was correct in its procedural ruling, ”
Slack v. McDaniel, 529 U.S. 473, 484 (2000), and
that the issues presented are not of such novelty as to
deserve further debate. The Court therefore
denies a certificate of appealability.