HICKINGBOTTOM v. BROWN

Filing 3

ENTRY Discussing Petition for Writ of Habeas Corpus and Denying Certificate of Appealability - For the reasons explained in this Entry, the petition of Michael Hickingbottom for a writ of habeas corpus must be denied and the action dismissed for lack of jurisdiction. In addition, the court finds that a certificate of appealability should not issue. As a preliminary matter, the proper respondent in this action is the petitioner's custodian, as shown in the caption of this Entry, and that off icial named in his official capacity is substituted as the respondent. The clerk shall amend the docket to reflect the petitioner's address as the following: Wabash Valley Correctional Facility, 6908 S. Old US Highway 41, P.O. Box 500, Carlisle, IN 47838. 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 11/9/2011. (JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

MICHAEL HICKINGBOTTOM,
Petitioner,
v.
SUPERINTENDENT, Wabash Valley
Correctional Facility,
Respondent.

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No. 1:11-cv-1484-JMS-TAB

Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
For the reasons explained in this Entry, the petition of Michael Hickingbottom for a
writ of habeas corpus must be denied and the action dismissed for lack of jurisdiction. In
addition, the court finds that a certificate of appealability should not issue.
As a preliminary matter, the proper respondent in this action is the petitioner’s
custodian, as shown in the caption of this Entry, and that official named in his official
capacity is substituted as the respondent. The clerk shall amend the docket to reflect the
petitioner’s address as the following: Wabash Valley Correctional Facility, 6908 S. Old US
Highway 41, P.O. Box 500, Carlisle, IN 47838.
I.
“Subject-matter jurisdiction is the first question in every case, and if the court
concludes that it lacks jurisdiction it must proceed no further.” State of Illinois v. City of
Chicago, 137 F.3d 474, 478 (7th Cir. 1998). Hickingbottom’s petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254(a) fails this test and the action must therefore be
dismissed.
The pleadings and the expanded record show that (1) Hickingbottom filed a prior
habeas action, docketed in this court as No. 1:09-cv-538-WTL-DML challenging his Lake
County conviction for the murder of David Reed, and (2) the prior habeas action was
denied and the action dismissed with prejudice on October 30, 2009.
Hickingbottom has now filed another petition for a writ of habeas corpus. When
there has already been a decision on the merits in a federal habeas action, another round
of federal collateral review 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 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.
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
Hickingbottom 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.

11/09/2011
Date: _________________
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Note to Clerk: Processing this document requires actions in addition to docketing and distribution.