United States District Court, S.D. Indiana, Indianapolis Division
JAMES K. CHENOWETH, Petitioner,
KEITH BUTTS Warden of the New Castle Correctional Facility, New Castle, Indiana, Respondent.
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
AS UNAUTHORIZED SUCCESSIVE PETITION
EVANS BARKER, JUDGE UNITED STATES DISTRICT COURT
K. Chenoweth was convicted of two counts of child molesting
in the Elkhart County Superior Court, case number
20D03-0705-FA-00028, on June 18, 2009. The Indiana Court of
Appeals affirmed Mr. Chenoweth's conviction and sentence
on August 3, 2010. Chenoweth v. State, 930 N.E.2d
1244 (Ind.Ct.App. 2010) (table; text in Westlaw at 2010 WL
3011960). The Indiana Supreme Court denied transfer on
October 20, 2010. Chenoweth v. State, 940 N.E.2d 827
(Ind. 2010) (table; text in Westlaw at 2010 WL 5481089).
Certiorari review by the Supreme Court of the United States
was not sought. Mr. Chenoweth's conviction therefore
became final 90 days later, when the time for seeking
certiorari expired, on January 18, 2012. Gonzalez v.
Thayer, 565 U.S. 134, 150 (2012).
Chenoweth filed a state petition for post-conviction relief
on August 19, 2013. At that time, 579 days had elapsed
between the conviction becoming final and the commencement of
a state post-conviction petition.
state trial court denied post-conviction relief on August 1,
2014. The Indiana Court of Appeals affirmed the denial of
post-conviction relief on June 9, 2015. Chenoweth v.
State, 35 N.E.3d 317 (Ind.Ct.App. 2015) (table; text in
Westlaw at 2015 WL 3618693). The Indiana Supreme Court denied
transfer on December 3, 2015. Chenoweth v. State, 41
N.E.3d 690 (Ind. 2015) (table; text in Westlaw at 2015 WL
October 5, 2016, Mr. Chenoweth filed a petition for a writ of
habeas corpus in the Northern District of Indiana, South Bend
Division, pursuant to 28 U.S.C. § 2254. Chenoweth v.
Neal, No. 3:16-cv-00673-JTM-MGG (N.D. Ind. Oct. 5,
2016). The petition challenged his conviction in state case
number 20D03-0705-FA-00028. The federal district court
dismissed the petition as untimely on October 18, 2016. Mr.
Chenoweth appealed that decision to the United States Court
of Appeals for the Seventh Circuit. Chenoweth v.
Neal, No. 17-1032. On June 12, 2017, the Seventh Circuit
denied Mr. Chenoweth's appeal by denying a certificate of
appealability and “find[ing] no substantial showing of
the denial of a constitutional right.” Id.
Chenoweth concedes this procedural history in his instant
petition, styled as a “second petition, ” noting
the dismissal of his prior petition, as well as noting the
Seventh Circuit's denial of his appeal. Dkt. 1, p. 6. He
does not address in his petition any justification for
bringing a successive action in this Court without having
first obtained permission from the Seventh Circuit.
Mr. Chenoweth contends that the instant petition is not a
successive petition because it raises issues that were not
raised in the first petition. Dkt. 7, pp. 4-5. He then argues
that his first petition was timely and that he should receive
the benefits of equitable tolling.
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 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 filing.” Id. Pursuant to
Altman, a petition dismissed because it was untimely
counts as a petition dismissed on the merits. 337 F.3d at
Chenoweth's current Section 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. Chenoweth has or
lacks a strong case for filing a successive Section 2254
petition. That is a point on which the Court expresses no
opinion and into which it has no authority to inquire. If Mr.
Chenoweth wishes to pursue his successive claims, he must
file a request to do so in the Seventh Circuit Court of
Appeals. 28 U.S.C. § 2244(b)(3)(A).
this action is dismissed for lack of
jurisdiction. Final judgment shall enter consistent with this
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.” Buck v. Davis,
137 S.Ct. 759, 773 (2017). Instead, a state prisoner must
first obtain a certificate of appealability. See 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 U.S.C. § 2253(c)(2). In deciding
whether a certificate of appealability should issue,
“the only question is whether the applicant has shown
that jurists of reason could disagree with the district
court's resolution of his constitutional ...