MYERS v. DOAN-SELMIER

Filing 3

ENTRY Discussing Petition for Writ of Habeas Corpus and Denying Certificate of Appealability - With the prior habeas petition motion having been adjudicated on the merits, and in the absence of authorization for the present filing from the Court of A ppeals, this action must now be dismissed for lack of jurisdiction. Judgment consistent with this Entry shall now issue. The court therefore denies a certificate of appealability. (copy to Petitioner via US Mail). Signed by Judge Jane Magnus-Stinson on 10/17/2011. (JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

DAMON A. MYERS,
Petitioner,
vs.
STACY DOAN-SELMIER,
Respondent.

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1:11-cv-01376-JMS-TAB

Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
I. Petition for Writ of Habeas Corpus
The petitioner’s motion for relief from order of judgment in No. 1:10-cv-01067RLY-TAB was evaluated pursuant to Gonzalez v. Crosby, 545 U.S. 524 (2005), and has
been processed as a new action seeking habeas corpus relief pertaining to his 2006
conviction for child molesting in an Indiana state court. This conviction was affirmed on
appeal in Myers v. State, No. 49A05-0610-CR-616 and 49A04-0612-CR-690
(Ind.Ct.App. July 23, 2007.
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.
Myers has been down this path before. Specifically, in No. 1:10-cv-01067-RLYTAB, Myers sought habeas corpus relief with respect to the same conviction. After
briefing and the filing of an expanded record, it was concluded that Myers was not
entitled to a writ of habeas corpus because he committed procedural default in the state
courts. Accordingly, the habeas action docketed as No. 1:10-cv-01067-RLY-TAB was
dismissed with prejudice on June 22, 2011.

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 must obtain 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 filing.'" Id.
With the prior habeas petition motion having been adjudicated on the merits, 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.
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 Myers 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.

10/17/2011
Date: _________________
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana