Opinion
CAUSE NO. 3:11-CV-225 WCL.
June 6, 2011
OPINION AND ORDER
Robert L. Spann, Jr., a pro se prisoner, filed this second habeas corpus petition attempting to challenge his criminal conviction in 71D02-0410-FC-359 in St. Joseph County Superior Court. In Superintendent v. Spann, 3:10-cv-182 (N.D.Ind. filed May 6, 2010), Robert L. Spann, Jr., a pro se prisoner, sought to challenge the same conviction he is challenging here. Final judgment was entered in that case on January 28, 2011.
This court lacks jurisdiction to hear an additional habeas corpus petition challenging the same conviction. Regardless of whether the claims that Spann is now attempting to present are new or whether they were presented in his previous petition, 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." 28 U.S.C. § 2244(b)(3). Here, Spann 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). Therefore any previously unpresented claims must also be dismissed.
For the foregoing reasons, this case is DISMISSED for want of jurisdiction.
SO ORDERED.