Swisher v. Superintendent

Filing 14

OPINION AND ORDER denying Petitioner a certificate of appealability. Signed by Judge Theresa L Springmann on 8/27/2012. (kds)

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 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, which this Court denied
on June 4, 2012 [ECF No. 9], and a Motion to Amend Original Petition, or Reconsider Filing
Habeas Corpus [ECF No. 10], which this Court denied on July 2, 2012 [ECF No. 11]. The
Petitioner has now filed a Notice of Appeal [ECF No. 12].

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, the Court must consider
whether to grant the Petitioner a certificate of appealability. To obtain a certificate of
appealability, a petitioner must make a substantial showing of the denial of a constitutional right
by establishing “that reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (quotation marks omitted).
When the court dismisses a petition on procedural grounds, the determination of whether
a certificate of appealability should issue has two components. Id. at 484–85. First, the petitioner
must show that reasonable jurists would find it debatable whether the court was correct in its
procedural ruling. Id. at 484. Next, the petitioner must show that reasonable jurists would find it
debatable whether the petition states a valid claim for denial of a constitutional right. Id. To
obtain a certificate of appealability, the petitioner must satisfy both components. Id. at 485.
For the reasons stated in the Court’s Opinion and Order dismissing this Petition for want
of jurisdiction [ECF No. 6], this Court concludes that the Petitioner’s attempt to file a petition for
writ of habeas corpus must be dismissed because it would be a second or successive petition
without leave of the circuit court. Jurists of reason could not debate the correctness of this
procedural ruling or find a reason to encourage the Petitioner to proceed further.
For the foregoing reasons, the Court DENIES the Petitioner a certificate of appealability.
SO ORDERED on August 27, 2012.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION

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