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U.S. Ex Rel. Johnnie L. Henderson (#B-01349 v. Randy Pfister
March 13, 2012
U.S. EX REL. JOHNNIE L. HENDERSON (#B-01349)
RANDY PFISTER, ET AL.
Name of Assigned Judge Sitting Judge if Other or Magistrate Judge AMY J. ST. EVE than Assigned Judge
Petitioner's motion for leave to file in forma pauperis [#3] is granted. However, this successive petition for a writ of habeas corpus is dismissed for lack of jurisdiction pursuant to 28 U.S.C. § 2244(b)(3). The case is terminated. Petitioner's motion for appointment of counsel [#4] is denied as moot. A copy of Circuit Rule 22.2 is attached to this order.
O [For further details see text below.] Docketing to mail notices.
Johnnie Henderson, an Illinois state prisoner, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges, on numerous grounds, his first degree murder conviction.
Petitioner having shown that he is indigent (he has a substantial
negative balance in his prison trust account), his motion to proceed
in forma pauperis is granted. However, the Court
has reviewed the petition and finds that it must be dismissed for lack
Under the Antiterrorism and Effective Death Penalty Act of 1996, a
habeas petitioner must obtain prior leave from the court of appeals
before the district court can consider a second or successive
petition. See 28 U.S.C. § 2244(b)(3)(A).
Petitioner in the case at bar filed an earlier habeas corpus petition,
Henderson v. Pierce , Case No. 11 C 0378 (N.D.
Ill.). This Court denied that petition as procedurally defaulted by
Memorandum Opinion and Order of July 28, 2011 (St. Eve, J.), and the
U.S. Court of Appeals for the Seventh Circuit denied Petitioner's
request for a certificate of appealability. A dismissal based on
procedural default counts as a prior adjudication on the merits
because the petitioner is incapable of curing the defect underlying
the district court's judgment. See Altman v. Benik
, 337 F.3d 764, 766 (7th Cir. 2003) (citations omitted).
Petitioner makes no showing that the Seventh Circuit Court of
Appeals has granted him leave to file a second habeas corpus petition.
The Court therefore has no jurisdiction to consider Petitioner's
application for habeas corpus relief under § 2254. See
Nunez v. United States , 96 F.3d 990, 991 (7th Cir. 1996);
In re Page , 170 F.3d 659 (7th Cir. 1999).
Accordingly, the Court grants Petitioner's motion for leave to file in forma pauperis but summarily dismisses the habeas corpus petition, without prejudice to re-filing suit should Petitioner obtain leave to file from the Seventh Circuit Court of Appeals. Attached to this order is a copy of Circuit Rule 22.2. Circuit Rule 22.2 explains the procedures Petitioner must follow to obtain leave from the Seventh Circuit Court of Appeals to file a second or successive habeas corpus petition.
Circuit Rule 22.2. Successive Petitions for Collateral Review
(a) A request under 28 U.S.C. §2244(b) or the final paragraph of 28 U.S.C. §2255 for leave to file a second or successive petition must include the following information and attachments, in this order:
(1) A disclosure statement, if required by Circuit Rule 26.1.
(2) A short narrative statement of all claims the person wishes to present for decision. This statement must disclose whether any of these claims has been presented previously to any state or federal court and, if it was, how each court to which it was presented resolved it. If the claim has not ...
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