FUTRELL v. ZATECKY

Filing 19

ENTRY Discussing Petition for a Writ of Habeas Corpus and Denying Certificate of Appealability. Petitioner Robert Futrell is an Indiana state prisoner currently incarcerated at Putnamville Correctional Facility. For the reasons explained in this Ent ry, Mr. Futrell's petition 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. Signed by Judge Jane Magnus-Stinson on 1/28/2016. Copy sent to Petitioner via U.S. Mail. (BGT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ROBERT FUTRELL,
Petitioner,
v.
DUSHAN ZATECKY,
Respondent.

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Case No. 1:14-cv-00048-JMS-TAB

Entry Discussing Petition for a Writ of Habeas Corpus
and Denying Certificate of Appealability
Petitioner Robert Futrell is an Indiana state prisoner currently incarcerated at Putnamville
Correctional Facility. For the reasons explained in this Entry, Mr. Futrell’s petition 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.
The Petition for Writ of Habeas Corpus
I. Background
On January 16, 1998, Mr. Futrell pled guilty to two counts of carrying a handgun without
a license and was sentenced to four years’ imprisonment (the “1998 Conviction”). After serving
over three years in prison for the 1998 Conviction, Mr. Futrell was released on parole on June 7,
2001, and was discharged from his sentence entirely on May 16, 2002.
On August 9, 2002, Mr. Futrell was convicted by a jury of robbery and battery, and was
sentenced as an habitual offender (the “2002 Conviction”). He was sentenced to forty years’
imprisonment and remains in custody for that conviction.
Mr. Futrell commenced state post-conviction proceedings regarding the 2002 Conviction
in March 2004. He was eventually denied relief by the post-conviction court, and the Indiana
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Court Appeals affirmed this decision on February 19, 2008. See Futrell v. State, 881 N.E.2d 100,
2008 WL 427662 (Ind. Ct. App. 2008).
On July 1, 2011, Mr. Futrell filed a petition for a writ of habeas corpus in this Court
challenging his 2002 Conviction. That petition was dismissed with prejudice on September 15,
2011, because it was filed outside the statute of limitations. See No. 1:11-cv-00898-SEB-DKL,
Dkt. 18. This Court, and subsequently the Seventh Circuit, denied Mr. Futrell a certificate of
appealability.
On September 10, 2012, Mr. Futrell filed a petition for post-conviction relief in state court
regarding his 1998 Conviction. While those proceedings were ongoing, Mr. Futrell filed another
habeas petition in this Court, which again challenged his 2002 Conviction. That petition was
dismissed on September 28, 2012, for lack of jurisdiction because it was an unauthorized
successive habeas petition. See No. 1:12-cv-01342-WTL-DKL, Dkt. 6.
On November 21, 2013, Mr. Futrell filed a motion for permission to file a successive
habeas petition with the Seventh Circuit. The Seventh Circuit denied Mr. Futrell authorization to
do so on December 17, 2013.
Shortly thereafter, Mr. Futrell, proceeding pro se, filed the instant petition for a writ of
habeas corpus on January 10, 2014. After multiple supplemental briefs, Mr. Futrell’s petition is
now ripe for ruling.
II. Discussion
It is not entirely clear from Mr. Futrell’s habeas petition what types of claims he seeks to
raise. Nor is it clear whether his habeas petition seeks to challenge his 1998 Conviction or his
2002 Conviction.

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In response to the Court’s show cause order, the respondent construed Mr. Futrell’s petition
as challenging his 1998 Conviction. Given this, the respondent argues that his petition must be
denied for lack of jurisdiction because he is no longer “in custody” for his 1998 Conviction.
The Court subsequently ordered the respondent to provide the Court with more information
regarding the sentences imposed for both the 1998 Conviction and 2002 Conviction and ordered
Mr. Futrell to supplement his briefing with argument as to why he remains in custody with respect
to his 1998 Conviction. [See Filing No. 10; Filing No. 12.]
In his supplemental briefing, Mr. Futrell acknowledges that he is no longer in custody for
his 1998 Conviction. [See Filing No. 13 at 4.] However, he argues that the Court has jurisdiction
because he is challenging his 2002 Conviction on the ground that his sentence was enhanced was
based at least in part on his 1998 Conviction, which he contends was obtained in violation of his
constitutional rights. [See Filing No. 16 at 2 (“This Court does have jurisdiction . . . under 28
U.S.C. § 2254 because Futrell[’s] plea agreement to the 1998 predicate felonies has him in custody
pursuant to the state court habitual offender conviction that he is challenging one of the state[’s]
predicate. . . . . The conviction Futrell attacks in his petition for habeas relief is his 1998 Marion
County Conviction . . . that enhance the 2002 Conviction as the habitual offender was attached to
[the 2002 Conviction].”).]
The Court accepts Mr. Futrell’s clarification that his habeas petition is a challenge to his
enhanced sentence received as a result of his 2002 Conviction. The consequences of this, however,
is that the Court lacks jurisdiction over his petition, as he has already challenged the 2002
Conviction via prior federal habeas petitions. 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

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F.3d 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). It “‘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). Therefore, “[a] district court must dismiss a second or successive petition . . .
unless the court of appeals has given approval for the filing.” Id.
Here, less than a month before Mr. Futrell filed the instant habeas petition, the Seventh
Circuit denied him authorization to file a successive habeas petition in Case No. 13-3608.
Accordingly, this Court lacks jurisdiction over Mr. Futrell’s petition and it is therefore dismissed. 1
III. Conclusion
“[H]abeas corpus has its own peculiar set of hurdles a petitioner must clear before his claim
is properly presented to the district court.” Keeney v. Tamayo-Reyes 504 U.S. 1, 14 (1992)
(O'Connor, J., dissenting) (internal citations omitted). The petitioner has encountered the hurdle
produced by the limitation on filing second or successive habeas petitions without authorization.
His petition for a writ of habeas corpus is therefore dismissed for lack of jurisdiction.
Judgment consistent with this Entry shall now issue.

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Even if Mr. Futrell’s habeas petition is properly construed as a challenge to his 1998 Conviction,
the Court would still lack jurisdiction over his habeas petition. A federal court has jurisdiction
over a habeas petition only if the petitioner is “in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. § 2254(a) (emphasis added). To meet the “in custody”
requirement, the petitioner must be “‘in custody’ under the conviction or sentence under attack at
the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490 (1989). As Mr. Futrell himself
acknowledges, he is no longer in custody for his 1998 Conviction.
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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 the petitioner has failed to show
that reasonable jurists would find “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.

January 28, 2016
Date: __________________

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution:
ROBERT FUTRELL
851182
PUTNAMVILLE - CF
PUTNAMVILLE CORRECTIONAL FACILITY
Inmate Mail/Parcels
1946 West U.S. Hwy 40
Greencastle, IN 46135
Electronically Registered Counsel

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