Opinion
No. 2:12-cv-178-JMS-WGH
06-26-2012
RICHARD BECK, Petitioner, v. SUPERINTENDENT BROWN, Respondent.
Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
For the reasons explained in this Entry, the petition of Richard Beck 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. See Small v. Endicott, 998 F.2d 411, 414 (7th Cir. 1993).
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 Richard Beck for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a) fails this test.
Beck filed a prior habeas action, docketed as No. 2:10-cv-306-JMS-DML, challenging his convictions for burglary and residential entry. Those are the same convictions challenged in this case. The prior habeas action was denied in an Order issued on May 20, 2011.
Beck's post-judgment brief filed in the prior habeas action on June 20, 2012, has been processed as a new habeas petition in accord with Gonzalez v. Crosby, 545 U.S. 524 (2005), and with the order of June 25, 2012, issued in the prior habeas action.
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.
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 Beck has failed to show that reasonable jurists would find it "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.
_________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
Distribution:
Richard Beck
No. 967008
Wabash Valley Correctional Facility
P.O. Box 1111
6908 S. Old U.S. Highway 41
Carlisle, IN 47838