BROWN v. INDIANA SUPERIOR COURT OF MARION COUNTY
ENTRY Discussing Petition 1 for Writ of Habeas Corpus and Denying Certificate of Appealability - The present action, for which no authorization from the Court of Appeals has been supplied, must be dismissed for lack of jurisdiction. (SEE ENTRY). Judgment consistent with this Entry shall now issue.The court denies a certificate of appealability. (copy to Petitioner via U.S. Mail) Signed by Judge Jane Magnus-Stinson on 8/18/2011.(JKS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
ATTORNEY GENERAL OF INDIANA,
Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
I. Petition for Writ of Habeas Corpus
Peter Brown is confined at a federal prison in Lewisburg, Pennsylvania. Brown
was convicted of Reckless Homicide in an Indiana state court in a proceeding identified
as No. 49G01-9109-CF-128567. The conviction was entered based on Brown’s plea
agreement with the State of Indiana, which the trial court accepted.
Claiming that the State of Indiana breached the plea agreement, Brown has filed
this action for a writ of habeas corpus. The action is before the court for its preliminary
review pursuant to Rule 4 of the Rules Governing Section 2254 Proceedings in the United
States District Court.
Brown has been down this path before. Specifically, in an action docketed as No.
2:07-cv-209-RLY-WGH, Brown sought habeas corpus relief with respect to the same
conviction. After briefing and the filing of an expanded record, it was concluded that
Brown had been discharged from the 1992 conviction on July 11, 1994, and that he was
unable to satisfy the “in custody” requirement of the federal habeas state. Accordingly,
the habeas action docketed as No. 2:07-cv-209-RLY-WGH was dismissed for lack of
jurisdiction on November 14, 2007.
The adjudication in No. 2:07-cv-209-RLY-WGH is conclusive on the point noted.
Perry v. Sheahan, 222 F.3d 309, 318 (7th Cir. 2000)(“A dismissal for lack of jurisdiction
precludes relitigation of the issue actually decided, namely the jurisdictional issue.”)(citing
Magnus Electronics, Inc. v. La Republica Argentina, 830 F.2d 1396, 1400 (7th Cir. 1987)).
When there has already been a decision on the merits in a federal habeas action,
to obtain another round of federal collateral review a petitioner requires permission from
the Court of Appeals under 28 U.S.C. § 2244(b). See Potts v. United States, 210 F.3d
770, 770 (7th Cir. 2000). This statute, § 2244(b)(3), "creates a 'gatekeeping' mechanism
for the consideration of second or successive [habeas] applications in the district court."
Felker v. Turpin, 518 U.S. 651, 657 (1996). This statute "'is an allocation of subject-matter
jurisdiction to the court of appeals.'" In re Page, 170 F.3d 659, 661 (7th Cir. 1999) (quoting
Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996)), opinion supplemented on
denial of rehearing en banc, 179 F.3d 1024 (7th Cir. 1999). "'A district court must dismiss
a second or successive petition . . . unless the court of appeals has given approval for the
With the prior habeas petition motion having been adjudicated on the merits of the
question of whether Brown could satisfy the “in custody” requirement of the federal
habeas statute, and in the absence of authorization for the present filing from the Court of
Appeals, this action must now be dismissed for lack of jurisdiction. Judgment consistent
with this Entry shall now issue.
This means that the present action, for which no authorization from the Court of
Appeals has been supplied, must be dismissed for lack of jurisdiction as an unauthorized
second or successive habeas application. Burton v. Stewart, 127 S. Ct. 793, 796 (2007)
(stating that the district court was without jurisdiction to entertain the habeas petition
because the petitioner failed to receive the required authorization from the Court of
Appeals and had “twice brought claims contesting the same custody imposed by the
same judgment of the state court.”); United States v. Lloyd, 398 F.3d 978, 979 (7th Cir.
II. Certificate of Appealability
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules
Governing § 2254 proceedings, and 28 U.S.C. § 2253(c), the court finds that Brown has
failed to show that reasonable jurists would find it “debatable whether [this court] was
correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court
therefore denies a certificate of appealability.
IT IS SO ORDERED.
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
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