SCHREANE v. WATSON

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA TERRE HAUTE DIVISION CLARENCE D. SCHREANE, ) ) Petitioner, ) ) v. ) No. 2:20-cv-00045-JPH-DLP ) T.J. WATSON, ) ATTORNEY GENERAL OF TENNESSEE, ) ) Respondents. ) ORDER GRANTING MOTION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS FOR LACK OF JURISDICTION, DENYING MOTIONS FOR COUNSEL, AND DIRECTING ENTRY OF FINAL JUDGMENT I. MOTION TO DISMISS Clarence D. Schreane, a federal inmate at Terre Haute Federal Correctional Facility, filed this habeas action pursuant to 28 U.S.C. § 2254 challenging his 2004 convictions for felony murder and especially aggravated robbery in Tennessee state court. Dkt. [1]. The respondent filed a motion to dismiss arguing that Mr. Schreane previously brought a § 2254 habeas petition challenging the same conviction. Dkt. [22]. Mr. Schreane's previous habeas petition challenging the same conviction was denied on the merits in Schreane v. Slatery, No. 1:13-cv-00190, 2015 WL 5703193 (E.D. Tenn. Sept. 28, 2015). On appeal, the United States Court of Appeals for the Sixth Circuit appointed counsel, and upon briefing and oral argument, the court affirmed the judgment of the district court. The Supreme Court denied certiorari. Schreane v. Ebbert, 864 F.3d 446 (6th Cir. 2017), cert. denied, 138 S. Ct. 519 (2017). Mr. Schreane responded, arguing that his petition is not successive because he raises new claims for relief in the instant petition. 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. This is true even if the successive petition raises new claims not reviewed in the first petition. Mr. Schreane's petition is successive and there is no indication that he has obtained leave from the Seventh Circuit to file it. Accordingly, the respondent's motion to dismiss, dkt. [22], is granted and this action is dismissed for a lack of jurisdiction. Mr. Schreane must obtain authorization from the Seventh Circuit Court of Appeals before this Court may consider his habeas petition. Final Judgment in accordance with this decision shall issue. II. MOTIONS FOR THE APPOINTMENT OF COUNSEL Mr. Schreane's motions for the appointment of counsel dkts. [18] & [19], are denied. A petitioner pursuing federal habeas relief is entitled to counsel only when he is under a death sentence, which Mr. Schreane is not. See 18 U.S.C. § 3599 (a)(2); McFarland v. Scott, 512 U.S. 849, 855 (1994). Counsel must also be appointed in a habeas case when an evidentiary hearing is necessary to resolve the petition. Rule 8(c) of the Rules Governing Section 2254 Cases. Here, no hearing is required because the Court lacks jurisdiction to decide the unauthorized successive petition. These are not circumstances in which it is in the interest of justice to appoint counsel for Mr. Schreane. See 18 U.S.C. § 3006A(a)(2)(B) ("Whenever . . . the court determines that the interests of justice so require, representation may be provided for any financially eligible person who . . . is seeking relief under section 2241, 2254, or 2255 of title 28."); see also Winsett v. Washington, 130 F.3d 269, 281 (7th Cir. 1997). SO ORDERED. Date: 6/4/2020 Sjamu Patrick Hawleye James Patrick Hanlon United States District Judge Southern District of Indiana Distribution: CLARENCE D. SCHREANE 17956-074 TERRE HAUTE (33) FEDERAL CORRECTIONAL INSTITUTION Inmate Mail/Parcels P.O. BOX 33 TERRE HAUTE, IN 47808 John H. Bledsoe DEPUTY ATTORNEY GENERAL john.bledsoe @ag.tn.gov Shelese M. Woods UNITED STATES ATTORNEY'S OFFICE (Indianapolis) shelese.woods @usdoj.gov