McCOY v. BUSS

Full title: HAROLD McCOY, Petitioner, v. ED BUSS, Respondent

Court: United States District Court, N.D. Indiana, South Bend Division

Date published: Oct 24, 2005

Cause No. 3:05-CV-658 AS (N.D. Ind. Oct. 24, 2005)

Opinion

Cause No. 3:05-CV-658 AS.

October 24, 2005

MEMORANDUM AND ORDER

ALLEN SHARP, District Judge

Petitioner Harold McCoy submitted a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition must be dismissed on its face for failure to obtain permission of the Seventh Circuit Court of Appeals to file a second or successive petition. Mr. McCoy indicates on his petition that he has not previously filed any petitions for relief with respect to this judgment in any state or federal court. However, Mr. Howard has filed previous petitions for writ of habeas corpus in the Southern District of Indiana challenging this conviction. Those cases are 1:03cv157, 1:03cv1260, 1:03cv1294, 1:02cv1648, and IP 96-655. Mr. Howard has not established that he has applied for leave to file a successive petition with the Seventh Circuit Court of Appeals. This court must deny the present petition as a successive petition.

It is clearly established that a person convicted pursuant to the judgment of a court of the United States may bring only one application for federal collateral relief. 28 U.S.C. § 2244(a); Felder v. McVicar, 113 F. 3d 696, 698 (7th Cir. 1997); Benton v. Washington, 106 F. 3d 162, 163 (7th Cir. 1997); Nunez v. Washington, 96 F. 3d 990, 991 (7th Cir. 1996).

28 U.S.C. § 2244(b)(1) states, "A claim presented in a second or successive habeas corpus application under section § 2254 that was presented in a prior application shall be dismissed." (emphasis added). This court has no choice but to dismiss this petition with leave for petitioner to request permission of the Seventh Circuit Court of Appeals for an order authorizing this court to consider the application. Therefore, this court DISMISSES this action without prejudice so that Mr. Howard can seek authorization from the Court of Appeals.

Pursuant to the decision of the United States Court of Appeals for the Seventh Circuit in Hogan v. Hanks, 97 F.3d 189, 190 (7th Cir. 1996), the court now, sua sponte, STRIKES, Mitchell Daniels as a respondent in this matter and names Ed Buss.

IT IS SO ORDERED.