Moore v. Jackson
Filing
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OPINION entered by Chief Judge Michael P. McCuskey on 06/16/2011. It is ordered that: Respondents Motion to Dismiss for Lack of Subject Matter Jurisdiction 9 is GRANTED. Petitioners Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 by a Person in State Custody 1 is hereby dismissed for lack of subject matter jurisdiction. Petitioners Motion for Court Order 8 is denied as moot. This case is terminated. See written opinion. Copy of Opinion to the pro se plaintiff by way of e-filing project. (DE, ilcd)
E-FILED
Thursday, 16 June, 2011 11:49:51 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
ROBBIE J. MOORE,
Petitioner,
v.
LEONTA JACKSON, Warden
Respondent.
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Case No. 11-2085
OPINION
On March 25, 2011, Petitioner, Robbie J. Moore, filed a handwritten letter which this
Court construed as a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 by a
person in State Custody (#1). The Petitioner also filed, on April 21, 2011, a Motion for Court
Order (#8), requesting this Court to subpoena seven individuals and provide him copies of two
prior court cases. On May 13, 2011, Respondent filed a Motion to Dismiss for Lack of Subject
Matter Jurisdiction (#9), in which he argued that the Petitioner’s Petition is an unauthorized
successive petition. Respondent attached supporting documentation. Following careful
consideration, this Court agrees with Respondent that this Court lacks subject matter jurisdiction
over Petitioner’s Petition. Accordingly, Respondent’s Motion to Dismiss (#9) is GRANTED and
Petitioner’s Petition (#1) is DISMISSED.
ANALYSIS
In 1997, following a bench trial, Petitioner was convicted in 96-CF-264 of three counts of
predatory sexual assault and one count of aggravated criminal sexual abuse. The Petitioner was
sentenced to three consecutive terms of twenty years imprisonment for the predatory sexual
assault convictions and a consecutive seven-year term for aggravated sexual abuse. The Illinois
Supreme Court reversed Petitioner’s convictions for predatory criminal sexual assault ruling that
the statute creating the offense was unconstitutional. The Petitioner’s conviction and sentence
for aggravated sexual abuse were unaffected by the judgment. On May 24, 2000, Petitioner was
retried in 00-CF-246 and convicted by a jury of three counts of aggravated criminal sexual
assault. The Petitioner received three consecutive thirty-year terms. On appeal, the Illinois
Appellate Court reduced the Petitioner’s sentence to three twenty-year terms. Petitioner did not
file a petition for leave to appeal (PLA) in the Illinois Supreme Court. In 2004, Petitioner filed
an amended petition for post-conviction relief in the Circuit Court of Vermilion County. The
state trial court denied the Petitioner’s postconviction petition. The state trial court’s denial of
relief was affirmed on appeal. The Illinois Supreme Court denied Petitioner’s PLA.
On March 2007, Petitioner filed a Writ of Habeas Corpus Petition pursuant to § 2254
attacking his 1997 and 2000 Vermilion County convictions. In 2008, this Court denied the
Petitioner’s 2007 § 2254 Petition. In this case, the Petitioner filed a handwritten letter which this
Court construed as a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 by a
person in State Custody (#1) on March 25, 2011. In the Respondent’s Motion to Dismiss (#9),
he argues that this Court lacks subject matter jurisdiction concerning the Petitioner’s Petition
(#1) because the Petitioner did not obtain permission from the Seventh Circuit Court of Appeals
before filing his 2011 habeas petition. This Court agrees.
The Seventh Circuit defines a successive habeas corpus petition as any petition attacking
the same judgment the petition attacked. In re Page, 170 F.3d 659, 661 (7th Cir. 1999). The
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) “established a stringent set of
procedures that a prisoner ‘in custody pursuant to the judgment of a State court,’ 28 U.S.C. §
2254 (a), must follow if he wishes to file a ‘second or successive’ habeas corpus application
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challenging that custody, § 2254(b)(1).” Burton v. Stewart, 549 U.S. 127, 152 (2007). “In
pertinent part, before filing the application in the district court, a prisoner ‘shall move in the
appropriate court of appeals for an order authorizing the district court to consider the
application.’” Burton, 549 U.S. at 152-53, quoting 28 U.S.C. § 2244(b)(3)(A). A district court
“must dismiss a second or successive petition” for lack of subject matter jurisdiction, “unless the
court of appeals has given approval for its filing.” Nuñez v. United States, 96 F.3d 990, 991 (7th
Cir. 1996) (emphasis in original).
In the instant case, there is no question that this is a second or successive petition brought
under § 2254. In the Petitioner’s 2007 Petition he challenged his 1997 and 2000 Vermilion
County judgments. See Moore v. McCann, No. 07-CV-2062, 2008 WL 2519923, at *3-6 (C.D.
Ill. June 20, 2008). Similarly, the Petitioner’s instant Petition challenges his 1997 and 2000
Vermilion County judgments. Additionally, this Court dismissed the Petitioner’s 2007 Petition
with prejudice. Moore, 2008 WL 2519923 at *3-6; See Pavlovsky v. VanNatta, 431 F.3d 1063,
1064 (7th Cir. 2005) (stating that a petition dismissed without prejudice does not count as the
first petition). Therefore, the instant Petition is a second or successive petition. Since the
Seventh Circuit has not given approval for its filing, this Court is without jurisdiction to entertain
Petitioner’s Petition and it must be dismissed. See Burton, 549, U.S. at 157; Nuñez, 96 F.3d at
991. Further, the Petitioner’s Motion for Court Order (#8) is denied as moot.
IT IS THEREFORE ORDERED THAT:
(1) Respondent’s Motion to Dismiss for Lack of Subject Matter Jurisdiction (#9) is
GRANTED.
(2) Petitioner’s Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 by a
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Person in State Custody (#1) is hereby dismissed for lack of subject matter jurisdiction.
(3) Petitioner’s Motion for Court Order (#8) is denied as moot.
(4) This case is terminated.
ENTERED this 16th day of June, 2011.
s/MICHAEL P. McCUSKEY
CHIEF U.S. DISTRICT JUDGE
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