BONDS v. SUPERINTENDENT PENDLETON CORRECTIONAL FACILITY

• Court: District Court, S.D. Indiana
• Decided: September 16, 2022
• Docket: 1:22-cv-01678
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

MARLAN C. BONDS, ) ) Petitioner, ) ) v. ) No. 1:22-cv-01678-JPH-TAB ) SUPERINTENDENT PENDLETON ) CORRECTIONAL FACILITY, ) ) Respondent. )

Order Dismissing Petition for a Writ of Habeas Corpus for Lack of Jurisdiction

Petitioner Marlan Bonds is incarcerated at Pendleton Correctional Facility pursuant to an Indiana state court conviction for neglect of a dependent resulting in serious bodily injury and battery upon a child. For the reasons explained in this Order, the Court dismisses Mr. Bonds' petition for a writ of habeas corpus for lack of jurisdiction. I. Dismissal of Petition Mr. Bonds filed a "motion to file successive petition for writ of habeas corpus ad prosequendum" and a "motion for certificate of appealability." Dkts. 4, 5. These motions relate to his conviction in Indiana Cause number 20D03-0310-FB-00197 and his subsequent petition for habeas corpus in case number 3:11-cv-420 in the Northern District of Indiana. See Bonds v. Superintendent, 2012 WL 3961216 (N.D. Ind. Sept. 7, 2012). When there has already been a decision on the merits in a federal habeas action, a petitioner must obtain permission from the Court of Appeals under 28 U.S.C. § 2244(b) to initiate another round of federal review. See Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003). This statute, § 2244(b)(3), "creates a 'gatekeeping' mechanism for the consideration of second or successive [habeas] applications in district court." Felker v. Turpin, 518 U.S. 651, 657 (1996). "Section 2244(b)(3)(A) is an allocation of subject-matter jurisdiction to the court of appeals. A 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." In re Page, 170 F.3d 659, 661 (7th Cir. 1999) (internal quotation omitted) (emphasis in original).

Mr. Bonds has twice applied for permission from the Seventh Circuit Court of Appeals to pursue a successive petition. See Bonds v. Neal, No. 18-3682, docket 1 (Application for an order authorizing the District Court to consider a second or successive petition under 28 U.S.C. Section 2254); Bonds v. Neal, No. 19-1756, docket 1 (same). He has not received permission; thus, this Court lacks jurisdiction over his petition and it must be dismissed. II. Certificate of Appealability "A state prisoner whose petition for a writ of habeas corpus is denied by a federal district court does not enjoy an absolute right to appeal." Buck v. Davis, 137 S. Ct. 759, 773-74 (2017). Instead, a state prisoner must first obtain a certificate of appealability. See 28 U.S.C. §2253(c)(1). "A certificate of appealability may issue . . . only if the applicant has made a substantial showing

of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Applying these standards, and pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing Section 2254 Proceedings in the United States District Courts, and 28 U.S.C. § 2253(c), the Court finds that reasonable jurists would not dispute that Mr. Bonds' petition is an unauthorized successive petition over which this Court lacks jurisdiction. The Court therefore denies a certificate of appealability. Ill. Conclusion Mr. Bonds' petition for a writ of habeas corpus is dismissed for lack of jurisdiction. His motion for leave to proceed in forma pauperis, dkt. [2], motion to file successive petition for writ of habeas corpus, dkt. [4], and motion for certificate of appealability, dkt. [5], are denied as moot. Final judgment shall now issue. The Court observes that Mr. Bonds has included hundreds of pages of exhibits, some of which mention the child victim by name. The clerk is directed to place docket entries [1-1] and [4] under seal. SO ORDERED. Date: 9/1 : ate: 9/16/2022 <) Pat Lb it 0 James Patrick Hanlon United States District Judge Southern District of Indiana Distribution: MARLAN C. BONDS 953219 PENDLETON - CF PENDLETON CORRECTIONAL FACILITY Inmate Mail/Parcels 4490 West Reformatory Road PENDLETON, IN 46064