UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS PEORIA DIVISION
October 29, 2009
ALLAN P. AUSTIN, PETITIONER,
ANTHONY A. RAMOS, WARDEN, AND ATTORNEY GENERAL OF THE STATE OF ILLINOIS RESPONDENT.
The opinion of the court was delivered by: Joe Billy McDADE United States District Judge
ORDER & OPINION
Petitioner, Allan Austin, who is an inmate at Stateville Correctional Center in Joliet, Illinois, originally filed the instant habeas petition under 28 U.S.C. § 2254 in the Northern District of Illinois. On October 23, 2009, Judge Charles Norgle, Sr., transferred this case to this Court because the court of Petitioner's state conviction is in McLean County, Illinois, which is within the Central District of Illinois.*fn1
Under 28 U.S.C. § 2244, which governs second or successive petitions for writs of habeas corpus, including those made under § 2254, a habeas petitioner who has already filed one habeas petition in the District Court must obtain approval from the Court of Appeals prior to filing a second or successive habeas petition. 28 U.S.C. § 2244(b)(3)(A). In his instant petition, Petitioner mentions that he had previously filed a petition for habeas corpus pursuant to § 2254, challenging his state conviction, in this district, which was given case number 08-cv-1304. (Doc. 1 at 4). This earlier matter was filed on October 31, 2008, and Judge Michael Mihm granted the respondent's Motion to Dismiss on January 30, 2009, as the petition was untimely. (Case no. 08-1304: Doc. 10).
Under 28 U.S.C. § 2244(b)(3), this Court has no jurisdiction to hear a second or successive habeas petition without authorization from the Court of Appeals. However, not all subsequent petitions count as "second or successive." The Seventh Circuit has held that "in order for a habeas petition to be considered successive, the previous motion must have been denied on the merits." Garrett v. U.S., 178 F.3d 940, 942 (7th Cir. 1999). In Altman v. Benik, the Seventh Circuit held "that a prior untimely petition does count [under § 2244(b)(3)] because a statute of limitations bar is not a curable technical or procedural deficiency but rather operates as an irremediable defect barring consideration of the petitioner's substantive claims." 337 F.3d 764, 766 (7th Cir.2003). See also Pavlovsky v. VanNatta, 431 F.3d 1063 (7th Cir. 2005) (dismissal of untimely petitions ordinarily "on the merits"*fn2 ); U.S. eX rel. Spaulding v. Ramos, 09-c-19512009, WL 3066587, *2 (N.D. Ill. Sept. 23, 2009) (barring second § 2254 petition because previous petition dismissed as untimely).
As Petitioner has already filed a previous habeas petition relating to his state conviction, he needs to obtain an order from the Court of Appeals authorizing this Court to consider his instant petition. There is no indication in his petition that he has done so. Therefore, this matter is DISMISSED WITHOUT PREJUDICE, in order for Petitioner to attempt to obtain such authorization from the Court of Appeals.
Entered this 27th day of October, 2009