Jeffers v. Harnes
Filing
6
OPINION AND ORDER dismissing 1 Petition for Writ of Habeas Corpus for lack of jursidiction ***Civil Case Terminated. Signed by Judge Rudy Lozano on 11/15/11. (ksc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
LEROY R. JEFFERS,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.
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CAUSE NO.
3:11-CV-438
OPINION AND ORDER
Leroy R. Jeffers, also known as Jeberekiah E. Kelubai, a pro
se prisoner, filed this habeas corpus petition pursuant to 28
U.S.C. § 2254 challenging his 1983 drug convictions in Lake County.
See State v. Jeffers, 2CR-18-183-73. Pursuant to RULE 4 of the RULES
GOVERNING SECTION 2254 CASES, the court is obligated to review a habeas
petition and to dismiss it if “it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled to
relief.” For the reasons set forth below, the petition (DE# 1) is
DISMISSED for lack of jurisdiction.
BACKGROUND
On October 14, 2011, Jeffers filed this petition in the U.S.
District Court for the Southern District of Indiana. (DE# 1.) On
November 9, 2011, the case was transferred to this court. (DE# 4.)
In his petition, Jeffers challenges the validity of his 1983 drug
convictions in Lake County.(DE# 1.) In Jeffers v. Superintendent,
3:09-CV-529 (N.D. Ind. filed Nov. 9, 2009), Jeffers challenged the
same 1983 convictions. His petition was denied as untimely in June
2010 and he did not appeal the judgment.
DISCUSSION
This
court
lacks
jurisdiction
to
hear
an
unauthorized
successive habeas corpus petition. Burton v. Stewart, 549 U.S. 147,
157 (2007). As stated above, Jeffers already filed a federal habeas
petition challenging his 1983 drug convictions, and that petition
was denied.1 Regardless of whether the claims he is attempting to
present are new or the same as those previously presented, the
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). As to any new claims, the law provides:
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).
1
For purposes of determining whether a petition is successive,
courts do not “count” previous petitions that were dismissed for
curable technical reasons, such as failing to pay the filing fee or
filing in the wrong court. See Altman v. Benik, 337 F. 764, 766 (7th
Cir. 2003). However, a “prior untimely petition does count because a
statute of limitations bar is not a curable technical or procedural
deficiency but rather operates as an irremediable defect barring
consideration of the petitioner’s substantive claims.” Id.
2
Here, Jeffers has not obtained an order from the U.S. Court of
Appeals for the Seventh Circuit permitting him to proceed with any
new claims. “A district court must dismiss a second or successive
petition, without awaiting any response from the [state], 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.
CONCLUSION
For the reasons set forth above, the petition (DE# 1) is
DISMISSED for lack of jurisdiction.
DATED: November 15, 2011
/s/RUDY LOZANO, Judge
United States District Court
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