Davison v. Indiana Attorney General

Filing 2

OPINION AND ORDER: The 1 PETITION for Writ of Habeas Corpus, filed by Kevin Jermaine Davison, is DISMISSED for want of jurisdiction and the clerk is DIRECTED to close this case. Signed by Judge Rudy Lozano on 9/11/2017. (Copy mailed to pro se party)(lhc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE
KEVIN JERMAINE DAVISON,
Petitioner,
vs.
INDIANA ATTORNEY GENERAL,
Respondent.

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CAUSE NO. 4:17-CV-68

OPINION AND ORDER
This matter is before the court on the Petition under 28
U.S.C. Paragraph 2254 for Writ of Habeas Corpus filed by Kevin
Jermaine Davison on August 7, 2017. For the reasons set forth
below, the petition is DISMISSED for want of jurisdiction and the
clerk is DIRECTED to close this case.

DISCUSSION
Davison, a petitioner without a lawyer, is attempting to
challenge his conviction in the Tippecanoe Superior Court under
cause number 79D02-9903-CF-27. However, this is not the first time
that he has challenged that conviction. In Davison v. Carter, 2:08CV-151 (N.D. Ind. filed May 12, 2008), he was denied habeas corpus
relief because he had already completed his sentence before he
filed that case. Though the court did not address the substance of
his arguments, a procedural dismissal counts as a prior petition
if “the petitioner is incapable of curing the defect underlying

the district court's judgment.” Altman v. Benik, 337 F.3d 764, 766
(7th Cir. 2003). Such is the case here. Davison had completed his
sentence before filing his prior habeas corpus challenge. There is
nothing that he can do to change that reality. As such, this is a
successive petition.
However, Davison has not been authorized to file a successive
petition 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). Therefore
this case must be dismissed because this court lacks jurisdiction
to hear it.

CONCLUSION
For the reasons set forth above, the petition is DISMISSED
for want of jurisdiction and the clerk is DIRECTED to close this
case.
DATED: September 11, 2017

/s/Rudy Lozano, Judge
United States District Court

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