Phiffer, Earl v. Hepp, Randall
ORDER that Petitioner Earl Phiffer's motion for reconsideration, dkt. # 8 , is GRANTED and the October 21, 2014, judgment is VACATED. Phiffer's petition for a writ of habeas corpus is DISMISSED for petitioner's failure to obtain the au thorization required by 28 U.S.C. § 2244(b)(3)(A). This court has no authority to consider it. No certificate of appealability shall issue. The clerk of court is directed to enter an amended judgment accordingly. Signed by District Judge Barbara B. Crabb on 10/30/2014. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - EARL D. PHIFFER,
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - Petitioner Earl D. Phiffer has filed a motion for reconsideration of the October 21,
2014 order in which I denied his petition for a writ of habeas corpus under 28 U.S.C. §
2254. I understood petitioner to be challenging his conviction for bail jumping in State v.
Phiffer, No. 02cv3370 (Rock Cty. Cir. Ct.), but petitioner says that he was challenging
“count #1” from case no. 02cv3370, which is a conviction for child sexual assault.
Accordingly, I will grant petitioner’s motion for reconsideration and vacate the October 21
Unfortunately for petitioner, this decision does not help him. As I explained in the
October 21 order, petitioner filed a habeas petition in 2008 in which he challenged his
conviction for child sexual assault. Phiffer v. Grams, No. 08-cv-384-slc (W.D. Wis.). Under
28 U.S.C. § 2244(b)(3)(A), a petitioner may not file a second or successive application for
habeas relief in the district court unless he first seeks and obtains an order from the
appropriate court of appeals authorizing the district court to consider the application.
“second or successive” petition is one in which the prisoner is challenging the same
conviction that he challenged in a previous petition that was decided on the merits. In re
Page, 179 F.3d 1024, 1025 (7th Cir. 1999). Because I denied the 2008 petition on the
merits, his new petition qualifies as second or successive under § 2244(b)(3)(A).
If petitioner believes that he qualifies for an exception to the rule against filing
successive petitions, he must seek permission to file his petition with the Court of Appeals
for the Seventh Circuit. I have no authority to consider the petition until that court gives
its approval. Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996) ("A district court
must dismiss a second or successive petition, without awaiting any response from the
government, unless the court of appeals has given approval for its filing.").
Under Rule 11 of the Rules Governing Section 2254 Cases, the court must issue or
deny a certificate of appealability when entering a final order adverse to a petitioner. The
court should issue a certificate when “reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (internal quotations and citations omitted). To the
extent that this order qualifies as “final” under Rule 11, I decline to issue a certificate
because reasonable jurists would not debate whether the petition qualifies as “second or
successive” under § 2244.
IT IS ORDERED that
1. Petitioner Earl Phiffer’s motion for reconsideration, dkt. #8, is GRANTED and
the October 21, 2014, judgment is VACATED.
2. Phiffer’s petition for a writ of habeas corpus is DISMISSED for petitioner's failure
to obtain the authorization required by 28 U.S.C. § 2244(b)(3)(A). This court has no
authority to consider it. No certificate of appealability shall issue.
3. The clerk of court is directed to enter an amended judgment accordingly.
Entered this 30th day of October, 2014.
BY THE COURT:
BARBARA B. CRABB
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