DENNIS v. STATE OF INDIANA et al

Filing 6

Entry Discussing Amended Petition for Writ of Habeas Corpus and Denying Certificate of Appealability - For the reasons explained in this Entry, the amended petition of Michael Dennis for a writ of habeas corpus must be denied and the action dismis sed for lack of jurisdiction. In addition, the court finds that a certificate of appealability should not issue. The petitioner's motion to amend petition [dkt. 4] to include a challenge to the condition of his confinement is denied. Judgment consistent with this Entry shall now issue. The court denies a certificate of appealability. (See Entry.) Copy to petitioner via US Mail. Signed by Judge Jane Magnus-Stinson on 6/19/2014.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

MICHAEL J. DENNIS,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.

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Case No. 2:14-cv-150-JMS-WGH

Entry Discussing Amended Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
For the reasons explained in this Entry, the amended petition of Michael Dennis 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 amended petition of Michael Dennis for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254(a) fails this test.
Dennis has filed a prior habeas action in this court, docketed as No. 1:08-cv-93-SEBWTL, challenging his 2001 Marion County conviction for battery. That is the same conviction
challenged in his amended petition filed on June 12, 2014. The prior habeas action was denied in
an Order issued on February 27, 2008.
Dennis 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 February 27, 2008, based on the finding that
Dennis had committed unexcused procedural default with respect to his habeas claims.
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.
The petitioner’s motion to amend petition [dkt. 4] to include a challenge to the condition
of his confinement is denied because such a challenge does not fall within the “core of habeas.”
Nelson v. Campbell, 541 U.S. 637, 643 (2004)
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 Dennis 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.
06/19/2014
Date: _____________________
Distribution:
Michael J. Dennis
DOC #861913
PUTNAMVILLE CORRECTIONAL FACILITY
Inmate Mail/Parcels
1946 West U.S. Hwy 40
Greencastle, IN 46135

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