Pavlovsky v. Vannatta

Pavlovsky, a state prisoner, filed a petition for habeas corpus, 28 U.S.C. § 2254, which the district judge dismissed as untimely, but without prejudice. Pavlovsky did not appeal, but three and a half years later he filed another petition for habeas corpus, which the district judge again denied as untimely, and this time Pavlovsky has appealed. The state argues that the district judge had no jurisdiction over the second petition, because a district court lacks jurisdiction over a second (or subsequent) petition for habeas corpus unless the court of appeals has approved its filing in accordance with the criteria set forth in the last paragraph of section 2254 and the procedure prescribed by 7th Cir. R. 22.2(e). United States v. Scott, 414 F.3d 815, 817 (7th Cir. 2005); Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996); Pratt v. United States, 129 F.3d 54, 57 (1st Cir. 1997). This is true in general; but if the first petition was dismissed (or returned to the filer without even being accepted for filing, OConnor v. United States, 133 F.3d 548, 550 (7th Cir. 1998)) because of a curable technical deficiency, as where the petition is filed prematurely or in the wrong district or without payment of the filing fee, so that the dismissal is not final and therefore "without prejudice," then it doesnt count as the first petition, Slack v. McDaniel, 529 U.S. 473, 489 (2000); Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45 (1998), and the second petition becomes the first. Moore v. Mote, 368 F.3d 754, 755 (7th Cir. 2004); Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003). The idea is that the prisoner is entitled to one clean shot at establishing his entitlement to relief in a federal habeas corpus proceeding. Dahler v. United States, 259 F.3d 763, 764 (7th Cir. 2001); Ching v. United States, 298 F.3d 174, 177 (2d Cir. 2002); HaroArteaga v. United States, 199 F.3d 1195, 1197 (10th Cir. 1999). Once he has gotten that, basic principles of preclusion now applicable to habeas corpus as to conventional civil proceedings bar him from relitigating his case. Cf. Lambert v. Blodgett, 393 F.3d 943, 966 (9th Cir. 2004).