Opinion
No. 1:19-cv-04667-JPH-DLP
01-08-2020
ROBERT MURPHY, Petitioner, v. WARDEN, Respondent.
Order Dismissing Petition for a Writ of Habeas Corpus for Lack of Jurisdiction
Robert Murphy filed this habeas action pursuant to 28 U.S.C. § 2254 challenging his state-court conviction for murder in Indiana case number 18C05-0903-MR-1. Dkt. 1. Mr. Murphy already has brought a § 2254 habeas petition in the Northern District of Indiana challenging the same conviction. That petition was denied on the merits, No. 3:16-CV-606 (N.D. Ind. Apr. 17, 2018), and the Seventh Circuit denied his request for a certificate of appealability, No. 18-901 (7th Cir. Dec. 26, 2018).
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 Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003). This statute "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). Indeed, a district court does not have subject matter jurisdiction over a second or successive petition. In re Page, 170 F.3d 659, 661 (7th Cir. 1999). The "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 the filing." Id.
Mr. Murphy previously tried to file a successive petition in this Court, which was dismissed as unauthorized because he had not sought permission from the Court of Appeals. See No. 1:19-cv-02526-TWP-MPB, dkt. 11. Mr. Murphy then sought permission from the Seventh Circuit Court of Appeals, and he includes as an exhibit to this petition an order from the Seventh Circuit denying authorization to file a successive collateral attack. Dkt. 1-1 at 9-10. Because that court denied authorization, this action is dismissed for a lack of jurisdiction. Final judgment consistent with this order shall issue.
SO ORDERED.
Date: 1/8/2020
/s/_________
James Patrick Hanlon
United States District Judge
Southern District of Indiana Distribution: ROBERT MURPHY
142583
INDIANA STATE PRISON
INDIANA STATE PRISON
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