UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v. ) No. 2:08-CR-156 

) (2:13-CV-346)

)

LATOYA TRAVIS, )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court on the Motion for Relief

Pursuant to Title 28 U.S.C. § 2255, filed by defendant, Latoya

Travis, on September 16, 2013. For the reasons set forth below,

the motion is DISMISSED for lack of jurisdiction. The Clerk is

ORDERED to DISMISS the civil case. Further, this Court declines to

issue a certificate of appealability. 

BACKGROUND

On October 18, 2010, Defendant, LaToya Travis, plead guilty to

one count of Making a False Statement in a Loan Application, in

violation of Title 18 U.S.C. section 1014, and Aggravated Identity

Theft, in violation of Title 18 U.S.C. section 1028A. The plea

agreement included an appeal waiver, wherein Defendant agreed not

to challenge her sentence through a section 2255 petition. On

January 20, 2011, Travis was sentenced to a 42 month term of
imprisonment. That judgment was entered on January 24, 2011.

On September 20, 2012, Defendant filed a section 2255 petition

seeking a reduction in her sentence because: (1) she was confined

in harsh pretrial conditions; (2) she lived in substandard

conditions while awaiting sentencing; and (3) she did not see her

psychiatrist. This Court denied Travis’ habeas petition on March

1, 2013.

Travis has again filed a section habeas petition pursuant to

section 2255. In this petition, Travis sets out that, based upon

advice of her fellow inmates, she now believes she has ineffective

assistance of counsel claims against her prior attorney.

DISCUSSION

Following a direct appeal, a defendant generally has one

opportunity to challenge her conviction and sentence. Suggs v.

United States, 705 F.3d 279, 281-82 (7th Cir. 2013); 28 U.S.C. §

2255(a), (h). Should a defendant wish to file a second or

successive section 2255 motion challenging that same conviction or

sentence, she must first gain authorization to do so from the court

of appeals; otherwise, the district court does not have

jurisdiction to consider the motion. Suggs, 705 F.3d at 282; 28

U.S.C. §§ 2244(a)-(b), 2255(h). In general, only those successive

motions which challenge the underlying conviction and present newly

discovered evidence of defendant’s innocence or rely on a new

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retroactive constitutional law will be certified by the court of

appeals for district court review. Suggs, 705 F.3d at 282-83; 28

U.S.C. § 2255(h). “No matter how powerful a petitioner’s showing,

only [the Seventh Circuit] may authorize the commencement of a

second or successive petition.” Nunez v. United States, 96 F.3d

990, 991 (7th Cir. 1996). As the Nunez Court explained:

From the district court's perspective, it 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 its filing. . . . A second

or successive collateral attack may no more

begin in the district court than a criminal

prosecution may commence in the court of

appeals. 

Nunez, 96 F.3d at 991. 

Because Travis has already filed a section 2255 motion with

this Court, her current section 2255 motion is considered a second

or successive collateral attack on her conviction or sentence. She

has not obtained (or even sought as far as this Court is aware)

permission from the Seventh Circuit Court of Appeals to file this

successive section 2255 motion, and, therefore, it must be

dismissed. The fact that Travis’ appeal is still pending does not

change this analysis. See Phillips v. United States, 668 F.3d 433,

435 (“Nothing in the language of § 2244 or § 2255 suggests that the

time-and-number limits are irrelevant as long as a prisoner keeps

his initial request alive through motions, appeals, and

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petitions.”). Therefore, Travis’ motion is DISMISSED for lack of

jurisdiction. 

Certificate of Appealability

Pursuant to Rule 11 of the Rules Governing Section 2255

Proceedings, a district court must “issue or deny a certificate of

appealability when it enters a final order adverse to the

applicant.” 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). To make such a

showing, a defendant must show that “reasonable jurists could

debate whether (or, for that matter, agree that) the motion should

have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed

further.” Slack v. McDaniel, 529 U.S. 473, 484 (U.S. 2000)

(internal quotation marks and citation omitted). 

For the reasons set forth above, the Court concludes that

Travis’ motion is successive and has not been certified by the

Seventh Circuit Court of Appeals. The Court finds no basis for a

determination that reasonable jurists would find this decision

debatable or incorrect or that the issues deserve encouragement to

proceed further. Therefore, a certificate of appealability will

not be issued.

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CONCLUSION

For the reasons set forth above, the motion is DISMISSED for

lack of jurisdiction. The Clerk is ORDERED to DISMISS the civil

case. Further, this Court declines to issue a certificate of

appealability. 

DATED: September 30, 2013 /s/RUDY LOZANO, Judge

United States District Court

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