PANNELL v. NEAL

Filing 5

ENTRY: With the prior habeas petition 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. Pannell's mo tion to proceed with a new habeas action despite the jurisdictional impediment [dkt 2] is denied. Judgment consistent with this Entry shall now issue. The court therefore denies a certificate of appealability ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 10/20/2015. Copy sent via US Mail. (DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

DAVID PANNELL,

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Petitioner,
vs.
RON NEAL, Superintendent,
Respondent.

Case No. 1:15-cv-01524-WTL-DML

Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
“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). The petition of David Pannell for a writ of habeas corpus pursuant to 28
U.S.C. § 2254(a) fails this test and the action must therefore be dismissed.
I.
Pannell is a state prisoner who is serving the sentence imposed by a state court following
his conviction of murder based on the stabbing death of his wife Leisha. See Pannell v. State, 686
N.E.2d 824, 825 (Ind. 1997). Pannell has filed a petition for writ of habeas corpus, seeking his
release.
Pannell filed a prior habeas action in this court, docketed as No. 1:12-cv-01301-JMS-DML.
The prior habeas action was denied in an Order issued on March 19, 2015. His appeal from that
disposition has been docketed as No. 15-2221 and is pending.

Pannell has filed another petition for a writ of habeas corpus in which he asserts claims
which were or which could have been presented in the first habeas action. The disposition in No.
1:12-cv-01301-JMS-DML was based on the determination that the amended petition for writ of
habeas corpus was barred by the applicable statute of limitations, that in the alternative the claims
properly preserved in the state courts did not warrant relief, and that he had committed unexcused
procedural default with respect to claims not properly preserved for federal habeas review. Pannell
v. Neal, No. 1:12-cv-01301-JMS-DML (S.D.Ind. March 19, 2015). The prior habeas action was
dismissed with prejudice.
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 (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 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. Pannell’s motion to proceed with a new habeas action despite the
jurisdictional impediment [dkt 2] is denied. 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 Pannell 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.
Date: 10/20/2015
Distribution:
David Pannell
DOC #963265
Indiana State Prison
Inmate Mail/Parcels
One Park Row
Michigan City, IN 46360

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana