RICHARDSON v. WABASH VALLEY FACILITY
Filing
2
ENTRY Denying Petition for Writ of Habeas Corpus and Denying Certificate of Appealability. Judgment consistent with this Entry shall now issue. (S.O.) (copy to petitioner via U.S. Mail). Signed by Judge Jane Magnus-Stinson on 1/26/2012.(MAC)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
MARCUS RICHARDSON,
v.
Petitioner,
SUPERINTENDENT,
Respondent.
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No. 2:12-cv-013-JMS-MJD
Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
For the reasons explained in this Entry, the petition of Marcus Richardson
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.
I.
A.
Federal courts are authorized to dismiss summarily any habeas petition that
appears legally insufficient on its face. McFarland v. Scott, 512 U.S. 849, 856
(1994). This authority is conferred by Rule 4 of the Rules Governing Section 2254
Cases in United States District Courts, which provides that upon preliminary
consideration by the district court judge, "[i]f it plainly appears from the face of the
petition and any exhibits annexed to it that the petitioner is not entitled to relief in
the district court, the judge shall make an order for its summary dismissal and
cause the petitioner to be notified." See Small v. Endicott, 998 F.2d 411, 414 (7th
Cir. 1993). This is an appropriate case for such a disposition.
B.
“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 Marcus
Richardson for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a) fails this
test.
Richardson has filed a prior habeas action in this court, docketed as No. 1:04cv-2023-SEB-VSS, challenging his 1995 conviction for murder. That is the same
conviction challenged in this case. The prior habeas action was denied in an Order
issued on March 25, 2005.
Richardson has now 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. That earlier habeas action was dismissed with prejudice on March
25, 2005, based on the finding that the action had not been timely filed and was
barred by the statute of limitations enacted as part of the Anti-terrorism and
Effective Death Penalty Act of 1996 (AAEDPA@). A disposition of this nature is
deemed to have been Aon the merits@ for purposes of the AEDPA. Altman v. Benik,
337 F.3d 764, 766 (7th Cir. 2003).
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 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
Richardson 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.
01/26/2012
Date: _____________________
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
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