Opinion
NO. 3:07-CV-492.
November 20, 2007
OPINION AND ORDER
This matter is before the Court sua sponte.
On October 15, 2007, Petitioner, Howell O. Atkins, a pro se prisoner, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 to challenge his habitual offender, enhanced thirty — eight year sentence imposed on April 7, 1989, by the St. Joseph County Superior Court upon his conviction of assisting a criminal, cause number 71D02-8808-CF-00418. (DE #1). Twice before, Atkins has filed habeas corpus petitions challenging the same conviction, first in Atkins v Wright, 3:93 CV 113 (N.D. Ind. filed February 19, 1993), and then, in Atkins v Wright, 3:93 CV 308 (N.D. Ind. filed May 3, 1993).
Regardless of whether the claims Atkins is now attempting to present are new or whether they were presented in his previous petitions, this petition must be dismissed. "A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed." 28 U.S.C. § 2244(b)(1). Therefore, any claims previously presented must be dismissed.
Additionally, for any claim not previously presented, before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application. U.S.C. § 2244(b)(3). Here, Atkins has not obtained an order from the court of appeals permitting him to proceed with any previously unpresented claims. "A district court must dismiss a second or successive petition . . . unless the court of appeals has given approval for its filing." Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996) (emphasis in original). Consequently, any previously unpresented claims must also be dismissed.
Therefore, the habeas corpus petition is DISMISSED for want of jurisdiction.