Croft v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
ERICH IVAN CROFT,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
5:21-CV-05056-KES
MEMORANDUM OPINION AND
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS
Petitioner, Erich Ivan Croft, filed a petition pro se to set aside his
conviction based on a “Jurisdictional Challenge 2241.” Docket 1. Respondent,
United States of America, opposes the motion and moves to dismiss Croft’s
motion. Docket 9. The motion was referred to Magistrate Judge Daneta
Wollmann under 28 U.S.C. § 636(b)(1)(B). She issued a Report and
recommended that the habeas petition be dismissed with prejudice. Docket 17.
Croft filed objections to the report. Docket 21, 22. For the following reasons,
the court grants the United States’ motion to dismiss and dismisses the
petition without prejudice.
Although Croft filed two “Affidavits of Truth” in response to the Report
and Recommendation, neither document addresses the dispositive issue
articulated by Magistrate Judge Wollmann. Namely, that this court lacks
jurisdiction over this matter because this is a second petition to vacate under
28 U.S.C. § 2255 and it has not been certified by a panel of the court of
appeals under 28 U.S.C. § 2255(h). Under 28 U.S.C. § 2244(b)(3)(A), a second
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or successive application for habeas relief can only be filed in district court if it
is authorized by the court of appeals. Without authorization, the district court
must dismiss the petition. 28 U.S.C. § 2244(b)(4). Because Croft previously
filed a petition for habeas relief that was denied, he needs to obtain
authorization from the Eighth Circuit Court of Appeals to file a second petition
before this court can exercise jurisdiction over the matter.
The report recommended that the petition be dismissed with prejudice.
But when a petitioner failed to receive authorization from the Court of Appeals
before filing a second or successive petition challenging his custody, the district
court is without jurisdiction to entertain it. Burton v. Stewart, 549 U.S. 147,
157 (2007). And under common law, when a suit is dismissed for “want of
jurisdiction, or was disposed of on any ground which did not go to the merits of
the action, the judgment rendered will prove no bar to another suit.” Costello v.
United States, 365 U.S. 265, 286 (1961). Rule 41(b) of the Federal Rules of Civil
Procedure did not change this common-law principle with respect to dismissal
where the merits could not be reached. Id. Because the court did not reach the
merits of Croft’s claim, this petition is dismissed without prejudice.
In the alternative, to the extent Croft attempted to fashion his petition as
a request for relief under 28 U.S.C. § 2241, this court does not have
jurisdiction to address his issues. Croft is currently incarcerated in Pollock,
Louisiana according to the return address on his Affidavit of Truth. Docket 21
at 5. Requests for relief under § 2241 must be filed in the district court for the
district wherein such person is in custody. 28 U.S.C. § 2241(d); United States v.
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Leath, 711 F.2d 119, 120 (8th Cir. 1983). Because Croft is not held in custody
in South Dakota, this court would have no jurisdiction over his request for
relief, if it in fact seeks relief under § 2241.
CERTIFICATE OF APPEALABILITY
When a district court denies a petitioner’s § 2255 motion, the petitioner
must first obtain a certificate of appealability before an appeal of that denial
may be entertained. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). This
certificate may be issued “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(2). A “substantial
showing” is one that demonstrates “reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Stated differently, “[a] substantial showing
is a showing that issues are debatable among reasonable jurists, a court could
resolve the issues differently, or the issues deserve further proceedings.” Cox v.
Norris, 133 F.3d 565, 569 (8th Cir. 1997). The court finds that Croft has not
made a substantial showing that his claim is debatable among reasonable
jurists, that another court could resolve the issues raised in that claim
differently, or that a question raised by that claim deserves further
proceedings. Consequently, a certificate of appealability is denied.
CONCLUSION
Croft did not obtain permission from the Eighth Circuit Court of Appeals
to file a successive petition for relief under 28 U.S.C. § 2255. As a result, this
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court does not have jurisdiction to consider his petition and it is dismissed
without prejudice. Thus, it is
ORDERED that the Report and Recommendation (Docket 17) is adopted
in full, except that the petition is dismissed without prejudice.
IT IS FURTHER ORDERED that Croft’s “Jurisdictional Challenge 2241”
(Docket 1) is dismissed without prejudice.
IT IS FURTHER ORDERED that the United States’s motion to dismiss
(Docket 9) is granted.
IT IS FURTHER ORDERED that a certificate of appealability is denied.
Dated June 9, 2022.
BY THE COURT:
/s/Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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