Pannell v. Superintendent

Filing 3

OPINION AND ORDER re 1 PETITION for Writ of Habeas Corpus filed by David Pannell. This case is DISMISSED for want of jurisdiction. Signed by Judge Jon E DeGuilio on 5/28/15. (cc: David Pannell). (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DAVID PANNELL,
Petitioner,
v.
SUPERINTENDENT,
Respondent.

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Case No. 3:15-CV-221 JD

OPINION AND ORDER
David Pannell, a pro se prisoner housed at the Indiana State Prison, filed this habeas corpus
petition attempting to challenge his 1987 conviction and 60 year sentence by the Marion Superior
Court under cause number 49G01-9502-CF-24360. This is not the first time that Pannell has brought
a habeas corpus petition challenging that conviction. In Pannell v. Neal, 1:12-CV-1301 (S.D. Ind.
filed September 13, 2012), Pannell sought to challenge the same conviction he is challenging here.
DE 1 at 2. In that case, the court found the petition was untimely and further explained that even if
it had been timely, the grounds raised would not merit habeas corpus relief. Final Judgment was
entered on March 19, 2015, and his Rule 59(e) motion was denied on May 5, 2015.
In his prior habeas corpus proceeding, the court addressed the merits of his grounds for relief,
but even if it had not, this would still be a successive habeas corpus petition because a “prior
untimely petition . . . is not a curable technical or procedural deficiency but rather operates as an
irremediable defect barring consideration of the petitioner’s substantive claims.” Altman v. Benik,
337 F. 764, 766 (7th Cir. 2003). In this case, to the extent that Pannell is attempting to raise claims
that he has previously presented, they must be dismissed because “[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). To the extent that he is attempting to raise new claims,
this court lacks jurisdiction over such claims unless the court of appeals has authorized the
proceeding as required by 28 U.S.C. § 2244(b)(3)(A). “A district court must dismiss a second or
successive petition, without awaiting any response from the government, 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).
Because Pannell has not obtained authorization from the court of appeals to file a successive
petition, this case is DISMISSED for want of jurisdiction.
SO ORDERED.
ENTERED: May 28, 2015
/s/ JON E. DEGUILIO
Judge
United States District Court

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