Swisher v. Superintendent

Filing 11

OPINION AND ORDER denying 10 Motion to Amend/Correct original petition. Signed by Judge Theresa L Springmann on 7/2/2012. (kds) Modified on 7/3/2012 to correct document type (smp).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
RANDY MARVIN SWISHER,
Petitioner,
v.
SUPERINTENDENT, WESTVILLE
CORRECTIONAL FACILITY,
Respondent.

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CAUSE NO.: 3:12-CV-128-TLS

OPINION AND ORDER
On March 15, 2012, the Petitioner, Randy Marvin Swisher, filed a Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody [ECF No. 1] challenging
his 2008 convictions in the Porter Superior Court for aggravated battery and battery with a
deadly weapon. This Court reviewed the Petition pursuant to Rule 4 of the Rules Governing
Section 2254 Cases and dismissed it without prejudice for want of jurisdiction because the
Petitioner filed a previous petition for writ of habeas corpus challenging the same convictions,
which was denied on the merits. (Opinion & Order, ECF No. 6.) The Court advised the
Petitioner that if he can obtain leave of the United States Court of Appeals for the Seventh
Circuit to file a second or successive habeas corpus application under Section 2254, he may
refile his Petition for writ of habeas corpus in this Court. (Id. 2.) The Petitioner then filed a
Motion to Amend Judgment [ECF No. 8], arguing that his present Petition is not a second or
successive petition for writ of habeas corpus. This Court denied that Motion on June 4, 2012.
(Opinion & Order, ECF No. 9.)
The Petitioner has now filed a Motion to Amend Original Petition, or Reconsider Filing
Habeas Corpus [ECF No. 10], asking that the Court reconsider its determination that his Petition
is a second or successive petition. In this Motion, the Petitioner makes essentially the same

arguments that he made in his Motion to Amend Judgment. This Court has already concluded
that the Petitioner’s argument that the instant petition is not a second or successive petition for
writ of habeas corpus is without merit, and the Petitioner’s submissions in his Motion to Amend
Original Petition present no argument that would justify changing that determination.
Furthermore, as stated in the June 4, 2012, Order, the Petitioner previously elected to proceed in
his initial habeas petition although his State collateral review requests were still pending. The
Petitioner stated at that time that he understood this would mean he would have to seek leave of
the Seventh Circuit before filing another petition, and that leave would likely be denied as he
was voluntarily going forward before completion of the State collateral review process.
Accordingly, for the reasons stated in the Court’s Orders of May 1 and June 4, 2012, this Court
will deny the Petitioner’s Motion to Amend Original Petition.
For the foregoing reasons, the Court DENIES the Motion to Amend Original Petition, or
Reconsider Filing Habeas Corpus [ECF No. 10].
SO ORDERED on July 2, 2012.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION

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