Swisher v. Superintendent

Filing 6

OPINION AND ORDER; This case is DISMISSED for want of jurisdiction., ***Civil Case Terminated. Signed by Judge Theresa L Springmann on 5/1/12. (jld)

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
The Petitioner, Randy M. Swisher, filed a Petition Under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody [ECF No. 1] on March 15, 2012, challenging his
2008 convictions in the Porter County, Indiana, Superior Court for aggravated battery and
battery with a deadly weapon. Pursuant to Rule 4 of the Rules Governing Section 2254 Cases,
district courts are obligated to review a habeas corpus petition and to dismiss the petition if “it
plainly appears from the petition and any attached exhibits that the petitioner is not entitled to
relief.” This rule provides district courts with a gatekeeping responsibility to sift through habeas
corpus petitions, dismissing those petitions which obviously lack merit.
This is not the first time that the Petitioner has brought a habeas corpus petition
challenging his 2008 convictions for aggravated battery and battery with a deadly weapon. In
Swisher v. Superintendent, Westville Correctional Facility, No. 3:10-CV-229-RL (N.D. Ind.
filed June 8, 2010), the Petitioner sought to challenge the same convictions he is challenging
here. The court found that petition without merit, denied it, and entered final judgment on
September 6, 2011. Swisher v. Superintendent, Westville Corr. Facility, 2011 WL 3900844
(N.D. Ind. Sept. 2, 2011). The Petitioner filed a notice of appeal, and his appeal in 3:10-CV-229RL is still pending before the United States Court of Appeals for the Seventh Circuit.

Regardless of whether the claims the Petitioner is now attempting to present are new or
whether they were presented in his previous petition for writ of habeas corpus, this Petition must
be dismissed because this Court lacks jurisdiction to consider his claims. “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. Any claim not previously presented must also be dismissed
because “[b]efore 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.” Id. § 2244(b)(3). Here, the Petitioner
has not obtained an order from the Seventh Circuit 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). Therefore, any previously unpresented claims must also be
dismissed because this Court lacks subject matter jurisdiction to hear them. Id. (stating that the
requirement to seek approval from the court of appeals “is an allocation of subject-matter
jurisdiction to the court of appeals”).

For the foregoing reasons, the Petition [ECF No. 1] is DISMISSED without
prejudice for want of jurisdiction. If the Petitioner 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.
SO ORDERED on May 1, 2012.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
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UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION

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