WASHINGTON v. BUTTS

Filing 19

ENTRY Discussing Petition for Writ of Habeas Corpus and Denying Certificate of Appealability - 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 Appeal s, this action must now be dismissed for lack of jurisdiction. Judgment consistent with this Entry shall now issue. Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing § 2254 Proceedings, and 28 U.S.C.  7; 2253(c), the court finds that the petitioner has failed to show that reasonable jurists would find it "debatable whether [this court] was correct in its procedural ruling." The court therefore denies a certificate of appealability. (See Entry.) Signed by Judge Jane Magnus-Stinson on 1/5/2017. Copy sent to Petitioner via US Mail. (GSO)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

DALLAS LEE WASHINGTON,
Petitioner,
v.
KEITH BUTTS, Superintendent,
Respondent.

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No. 1:16-cv-1526-JMS-TAB

Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
The petition of Dallas Washington for a writ of habeas corpus must be denied and this
action dismissed for lack of jurisdiction. In addition, a certificate of appealability shall not be
issued. These conclusions rest on the following facts and circumstances:
1.

Washington is a state prisoner serving the executed portion of sentences imposed

following his convictions in a state court for Rape, Robbery, and Criminal Recklessness, along
with being found to be a habitual offender. See Washington v. State, 511 N.E.2d 452 (Ind. 1987).
Other challenges to his convictions and/or sentences in the Indiana state courts have been
unsuccessful.
2.

In addition to his challenges in the state courts, Washington filed an action for

habeas corpus relief in the Northern District of Indiana. This prior action for habeas corpus relief
was dismissed with prejudice in Dallas Washington v. Superintendent, No. 3:12-CV-003, 2012
WL 5361755 (N.D.Ind. Oct. 29, 2012). A certificate of appealability was denied.
3.
June 7, 2016.

This action was then filed on June 21, 2016 in a petition signed by Washington on

4.

The respondent argues that the present action is an unauthorized second or

successive habeas petition and hence must be dismissed for lack of jurisdiction.
5.

The habeas petition in No. 3:12-cv-003 was dismissed with prejudice as having

been filed beyond the applicable statute of limitations. This was a disposition on the merits. See
Gonzalez v. Crosby, 545 U.S. 524, 532 n.4 (2005)(explaining that a habeas petition is adjudicated
on the merits when “a determination [was made] that there exist or do not exist grounds entitling
a petitioner to habeas corpus relief under 28 U.S.C. § 2254(a) and (d)”); Pavlovsky v. VanNatta,
431 F.3d 1063, 1064 (7th Cir. 2005)(“The dismissal of a suit as untimely is a dismissal on the
merits, and so should ordinarily be made with prejudice, barring relitigation.”); Altman v. Benik,
337 F.3d 764, 766 (7th Cir. 2003) (per curiam) (“We hold today that a prior untimely [28 U.S.C.
§ 2254] petition does count [as an adjudication on the merits] because a statute of limitations bar
is not a curable technical or procedural deficiency. . . .”).
6.

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 filing.’ Id.

7.

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.
8.

Judgment consistent with this Entry shall now issue.

9.

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 it Adebatable 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: January 5, 2017

Distribution:
Electronically Registered Counsel
Dallas Washington
855859
NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels
1000 Van Nuys Road
NEW CASTLE, IN 47362