Govan v. Warden

Filing 4

OPINION AND ORDER: The court DISMISSES this case for want of jurisdiction; DENIES Kevin L. Govan a certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11; DENIES Kevin L. Govan leave to appeal in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3); and DIRECTS the clerk to close this case. Signed by Judge Robert L Miller, Jr on 8/3/2020. (Copy mailed to pro se party)(bas)

USDC IN/ND case 3:20-cv-00642-RLM-MGG document 4 filed 08/03/20 page 1 of 3
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KEVIN L. GOVAN,
Petitioner,
v.

CAUSE NO. 3:20-CV-642-RLM-MGG

WARDEN,
Respondent.
OPINION AND ORDER
Kevin L. Govan, a prisoner without a lawyer, filed a habeas corpus petition
attempting to challenge his convictions and 40-year sentence by the Allen
Superior Court in 02D04-0411-FB-196 on May 25, 2005. This isn’t the first time
he has brought a habeas corpus petition challenging that conviction. He
challenged the same convictions in Govan v. Superintendent, 3:09-CV-547 (N.D.
Ind. filed Nov. 20, 2009). That habeas corpus petition was denied on the merits.
The U.S. Court of Appeals for the Seventh Circuit denied his request for a
certificate of appealability.
“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.” 28 U.S.C. § 2244(b); Nunez v. United States, 96 F.3d
990, 991 (7th Cir. 1996). Mr. Govan hasn’t been authorized to file a successive
petition, so this case must be dismissed because the court lacks jurisdiction to
hear it.

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Mr. Govan knows he can’t file a successive habeas corpus petition without
permission pursuant to 28 U.S.C. § 2244(b)(3)(A). Mr. Govan filed a habeas
corpus petition challenging these same convictions in Govan v. Warden, 3:15cv-501 (N.D. Ind. filed October 22, 2015). The court dismissed that case as an
unauthorized successive petition.
Pursuant to Section 2254 Habeas Corpus Rule 11, the court must consider
whether to grant or deny a certificate of appealability. To obtain a certificate of
appealability when a petition is dismissed on procedural grounds, the petitioner
must show that reasonable jurists would find it debatable (1) whether the court
was correct in its procedural ruling and (2) whether the petition states a valid
claim for denial of a constitutional right. Slack v. McDaniel, 529 U.S. 473, 484
(2000). There is no basis for finding that jurists of reason would debate the court
lacks jurisdiction to consider this habeas corpus petition. Therefore, there is no
basis for encouraging Mr. Govan to proceed further, and a certificate of
appealability must be denied. For the same reasons, he can’t appeal in forma
pauperis because an appeal couldn’t be taken in good faith.
For these reasons, the court:
(1) DISMISSES this case for want of jurisdiction;
(2) DENIES Kevin L. Govan a certificate of appealability pursuant to
Section 2254 Habeas Corpus Rule 11;
(3) DENIES Kevin L. Govan leave to appeal in forma pauperis pursuant to
28 U.S.C. § 1915(a)(3); and
(4) DIRECTS the clerk to close this case.

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USDC IN/ND case 3:20-cv-00642-RLM-MGG document 4 filed 08/03/20 page 3 of 3
SO ORDERED on August 3, 2020
s/ Robert L. Miller, Jr.
JUDGE
UNITED STATES DISTRICT COURT

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