Felder v. Superintendent

Filing 2

OPINION AND ORDER DISMISSING CASE for want of jurisdiction. Signed by Judge Rudy Lozano on 7/6/11. (smp) Modified on 7/7/2011 (smp).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JOHN B. FELDER,

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Petitioner,
vs.
SUPERINTENDENT,
Respondent.

NO. 3:11-CV-260

OPINION AND ORDER
This matter is before the Court on the Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State
Custody, filed on June 23, 2011, Petitioner, John B. Felder, a pro
se prisoner.

Petitioner has filed another habeas corpus petition

attempting to challenge his criminal conviction and sentence under
cause number 46D01-0306-FB-72 in the LaPorte Superior Court. For
the reasons set forth below, this case is DISMISSED for want of
jurisdiction.

BACKGROUND
In Felder v. Farley, 3:92-CV-268 (N.D.Ind. filed October 20,
1992),

John

B.

Felder

challenged

the

conviction

that

he

is

challenging in this petition. Habeas corpus was denied in that case
and final judgment was entered on January 6, 1995 (DE# 56).

DISCUSSION
This Court lacks jurisdiction to hear this successive habeas
corpus petition. Regardless of whether the claims that Felder is
now attempting to present are new or whether they were presented in
his previous petition, this petition must be dismissed. “A claim
presented in a second or successive habeas corpus application under
section 2254 that was presented in a prior application shall be
dismissed.” 28 U.S.C. § 2244(b)(1). Therefore any claims previously
presented must be dismissed.

Additionally,

for any claim not

previously presented,
Before a second or successive application permitted by
this section is filed in the district court, the
applicant shall move in the appropriate court of appeals
for an order authorizing the district court to consider
the application.
28 U.S.C. § 2244(b)(3). Here, Felder has not obtained an order from
the court of appeals permitting him to proceed with any previously
unpresented claims. “A district court must dismiss a second or
successive petition . . . unless the court of appeals has given
approval for its filing.” Nunez v. United States, 96 F.3d 990, 991
(7th Cir. 1996) (emphasis in original). Therefore any previously
unpresented claims must also be dismissed.

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CONCLUSION
For the reasons set forth above, this case is DISMISSED for
want of jurisdiction.

DATED:

July 6, 2011

/s/RUDY LOZANO, Judge
United States District Court

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