TALLEY v. SUPERINTENDANT

Filing 4

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 App eals, this action must now be summarily dismissed for lack of jurisdiction. Judgment consistent with this Entry shall now issue. The court therefore denies a certificate of appealability. **SEE ORDER** Copy to Petitioner via U.S. Mail. Signed by Judge Sarah Evans Barker on 9/13/2016.(JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

HERVIN TALLEY,
Petitioner,
v.
SUPERINTENDENT, Westville
Control Unit,
Respondent.

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1:16-cv-2304-SEB-TAB

Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
I.
Hervin Talley was convicted in an Indiana state court of unlawful possession of a firearm
by a serious violent felon and resisting law enforcement. Talley v. State, No. 49A05-1507-PC1005 (Ind.Ct.App. Feb. 8, 2016). He sought a writ of habeas corpus in No: 2:16-cv-00059-WTLMJD which, after briefing and the filing of an expanded record, was denied on June 20, 2016.
Applying the rule established in Gonzalez v. Crosby, 545 U.S. 524, 532 (2005), a post-judgment
motion was ordered to be processed as a new habeas action and this action resulted. The postjudgment motion (“motion to correct error”) in No: 2:16-cv-00059-WTL-MJD was re-docketed as
the habeas petition in this action.
The habeas petition in No: 2:16-cv-00059-WTL-MJD was denied and the action was
dismissed with prejudice. This was a disposition on the merits. Gonzalez, 545 U.S. at 532 n.4 (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)”).
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.
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 summarily
dismissed for lack of jurisdiction.
II.
Judgment consistent with this Entry shall now issue.
III.
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: __________________
9/13/2016

Distribution:
HERVIN TALLEY
231273
WESTVILLE CORRECTIONAL FACILITY
Inmate Mail/Parcels
5501 South 1100 West
WESTVILLE, IN 46391