Travis v. USA

Filing 1

OPINION AND ORDER: the motion is DISMISSED for lack of jurisdiction. The Clerk is ORDERED to DISMISS the civil case. Further, this Court declines to issue a certificate of appealability. Signed by Judge Rudy Lozano on 9/30/13. cc: Travis(mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
LATOYA TRAVIS,
Defendant.

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No. 2:08-CR-156
(2:13-CV-346)

OPINION AND ORDER
This matter is before the Court on the Motion for Relief
Pursuant to Title 28 U.S.C. § 2255, filed by defendant, Latoya
Travis, on September 16, 2013.

For the reasons set forth below,

the motion is DISMISSED for lack of jurisdiction.

The Clerk is

ORDERED to DISMISS the civil case. Further, this Court declines to
issue a certificate of appealability.

BACKGROUND
On October 18, 2010, Defendant, LaToya Travis, plead guilty to
one count of Making a False Statement in a Loan Application, in
violation of Title 18 U.S.C. section 1014, and Aggravated Identity
Theft, in violation of Title 18 U.S.C. section 1028A.

The plea

agreement included an appeal waiver, wherein Defendant agreed not
to challenge her sentence through a section 2255 petition.

On

January 20, 2011, Travis was sentenced to a 42 month term of

imprisonment.

That judgment was entered on January 24, 2011.

On September 20, 2012, Defendant filed a section 2255 petition
seeking a reduction in her sentence because: (1) she was confined
in

harsh

pretrial

conditions;

(2)

she

lived

in

substandard

conditions while awaiting sentencing; and (3) she did not see her
psychiatrist.

This Court denied Travis’ habeas petition on March

1, 2013.
Travis has again filed a section habeas petition pursuant to
section 2255.

In this petition, Travis sets out that, based upon

advice of her fellow inmates, she now believes she has ineffective
assistance of counsel claims against her prior attorney.

DISCUSSION
Following a direct appeal, a defendant generally has one
opportunity to challenge her conviction and sentence.

Suggs v.

United States, 705 F.3d 279, 281-82 (7th Cir. 2013); 28 U.S.C. §
2255(a), (h).

Should a defendant wish to file a second or

successive section 2255 motion challenging that same conviction or
sentence, she must first gain authorization to do so from the court
of

appeals;

otherwise,

the

district

jurisdiction to consider the motion.
U.S.C. §§ 2244(a)-(b), 2255(h).

court

does

not

have

Suggs, 705 F.3d at 282; 28

In general, only those successive

motions which challenge the underlying conviction and present newly
discovered evidence of defendant’s innocence or rely on a new

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retroactive constitutional law will be certified by the court of
appeals for district court review.
U.S.C. § 2255(h).

Suggs, 705 F.3d at 282-83; 28

“No matter how powerful a petitioner’s showing,

only [the Seventh Circuit] may authorize the commencement of a
second or successive petition.”
990, 991 (7th Cir. 1996).

Nunez v. United States, 96 F.3d

As the Nunez Court explained:

From the district court's perspective, it 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 its filing. . . . A second
or successive collateral attack may no more
begin in the district court than a criminal
prosecution may commence in the court of
appeals.
Nunez, 96 F.3d at 991.
Because Travis has already filed a section 2255 motion with
this Court, her current section 2255 motion is considered a second
or successive collateral attack on her conviction or sentence. She
has not obtained (or even sought as far as this Court is aware)
permission from the Seventh Circuit Court of Appeals to file this
successive

section

2255

motion,

and,

therefore,

it

must

be

dismissed.

The fact that Travis’ appeal is still pending does not

change this analysis. See Phillips v. United States, 668 F.3d 433,
435 (“Nothing in the language of § 2244 or § 2255 suggests that the
time-and-number limits are irrelevant as long as a prisoner keeps
his

initial

request

alive

through

3

motions,

appeals,

and

petitions.”).

Therefore, Travis’ motion is DISMISSED for lack of

jurisdiction.

Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2255
Proceedings, a district court must “issue or deny a certificate of
appealability
applicant.”

when

it

enters

a

final

order

adverse

to

the

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).

To make such a

showing, a defendant must show that “reasonable jurists could
debate whether (or, for that matter, agree that) the motion should
have been resolved in a different manner or that the issues
presented
further.”

were

adequate

to

deserve

encouragement

to

proceed

Slack v. McDaniel, 529 U.S. 473, 484 (U.S. 2000)

(internal quotation marks and citation omitted).
For the reasons set forth above, the Court concludes that
Travis’ motion is successive and has not been certified by the
Seventh Circuit Court of Appeals.

The Court finds no basis for a

determination that reasonable jurists would find this decision
debatable or incorrect or that the issues deserve encouragement to
proceed further.

Therefore, a certificate of appealability will

not be issued.

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CONCLUSION
For the reasons set forth above, the motion is DISMISSED for
lack of jurisdiction.
case.

The Clerk is ORDERED to DISMISS the civil

Further, this Court declines to issue a certificate of

appealability.

DATED:

September 30, 2013

/s/RUDY LOZANO, Judge
United States District Court

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