REPORT AND RECOMMENDATION

LEO I. BRISBOIS, Magistrate Judge.

This case is before the undersigned United States Magistrate Judge on Petitioner's application for habeas corpus relief under 28 U.S.C. § 2254. (Docket No. 1.) The matter has been referred to this Court for a Report and Recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1. For the reasons discussed below, the Court will recommend that Petitioner's habeas corpus petition be summarily dismissed for lack of jurisdiction, pursuant to Rule 4 of The Rules Governing Section 2254 Cases In The United States District Courts.1

I. BACKGROUND

Petitioner is an inmate at the Minnesota Correctional Facility in Oak Park Heights, Minnesota. According to a website maintained by the Minnesota Department of Corrections, Petitioner is serving a prison sentence imposed by the state district court for Carlton County, Minnesota, following his conviction for fourth degree assault. However, Petitioner is not presently challenging his assault conviction, or the prison sentence that he is presently serving. Instead, Petitioner is challenging a judgment entered in 1992 in the state district court for Hennepin County, Minnesota, which caused him to be civilly committed as a "sexual psychopathic personality" under Minn.Stat. § 253B.185. (Petition, p. 1, §§ 1-4.)2 Petitioner appealed his civil commitment order, but his commitment was upheld by the Minnesota Court of Appeals. (Id., pp. 1-2, § 8; see also Matter of Holly, No. C9-92-1055 (Minn.App. 1992), 1992 WL 238360 (unpublished opinion); Matter of Holly, No. C9-94-492 (Minn.App. 1994), 1994 WL 396314 (unpublished opinion), rev. denied, Sept. 28, 1994.)3

Petitioner's current habeas corpus petition lists four challenges to his civil commitment, which he has described as follows:

(Petition, pp. 4-5, § 12.)

In 2001, Petitioner commenced a habeas corpus action in this District, seeking a judgment that would invalidate his civil commitment and cause him to be released from MSOP. Holly v. Harry, Civil No. 01-1324 (JMR/FLN), [hereafter "Holly I"]. That case was assigned to Magistrate Judge Franklin L. Noel for a report and recommendation, ("R&R"). Magistrate Judge Noel found that it was unclear whether Petitioner was seeking review of (i) an underlying criminal conviction, (ii) his original civil commitment order, or (iii) a later state court decision that denied Petitioner's application for a discharge from MSOP. All three of those possibilities were addressed in Magistrate Judge Noel's R&R in Holly I.

Magistrate Judge Noel determined that Petitioner's civil commitment order could not be reviewed in a federal habeas corpus proceeding, because any claims challenging that order were barred by the one-year statute of limitations that applies to federal habeas corpus petitions. See 28 U.S.C. § 2244(d)(1). Magistrate Judge Noel concluded that "it is now too late for Petitioner to seek federal habeas review" of the commitment order. Holly I, R&R dated October 12, 2001, [Docket No. 7], p. 5.

Petitioner did not file any objection to Magistrate Judge Noel's R&R in Holly I. Therefore, the R&R was adopted by the presiding District Court Judge, James M. Rosenbaum, and Holly I was summarily dismissed. (Holly I, Order dated October 31, 2001, [Docket No. 8].5) Petitioner did not appeal that ruling.

It is clear that Petitioner is presently seeking federal habeas corpus review of the same civil commitment order that was before the Court in Holly I. Thus, the Court finds that the present habeas corpus petition is a "second or successive petition," which must be summarily dismissed for lack of jurisdiction.

II. DISCUSSION

The federal rule restricting second or successive habeas corpus petitions is set forth at 28 U.S.C. § 2244(b).6 Under that rule, a federal district court cannot entertain a second or successive application for habeas corpus relief filed by a state detainee, unless he has first obtained authorization from the appropriate court of appeals allowing him to file another petition. 28 U.S.C. § 2244(b)(3)(A). See Cox v. Norris, 167 F.3d 1211, 1212 (8th Cir. 1999) (prisoner must receive pre-authorization from the court of appeals in order for a district court to consider a second or successive application for habeas corpus relief); Clay v. Bowersox, 628 F.3d 996, 998 (8th Cir. 2011) ("[t]he Anti-Terrorism and Effective Death Penalty Act restricts the authority of a district court to consider `second or successive' habeas corpus applications under 28 U.S.C. § 2254, and it requires authorization from a court of appeals before a second or successive application may be filed in the district court") (citing 28 U.S.C. § 2244(b)); Crawford v. Minnesota, 698 F.3d 1086, 1088 (8th Cir. 2012) ("[i]f a petition is second or successive, the court of appeals has a gatekeeping function to decide whether to grant preauthorization for it to be considered").

The petition now before this Court is Petitioner's second application for federal habeas corpus review of his civil commitment order. Because Petitioner's previous challenge to that order, in Holly I, was dismissed due to untimeliness, the Court finds that the present action must be viewed as a "second or successive petition" for purposes of § 2244(b). This means that the present petition cannot be entertained without preauthorization from the Eighth Circuit Court of Appeals. See Burton v. Stewart, 549 U.S. 147, 153, (2007) (where habeas petitioner "twice brought claims contesting the same custody imposed by the same judgment of a state court . . . he was required to receive authorization from the Court of Appeals before filing his second challenge" in a second habeas petition). Because Petitioner has not secured a pre-authorization order from the Eighth Circuit, his current petition must be summarily dismissed for lack of jurisdiction. Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996); Chadwick v. Graves, 110 F.Supp.2d 1110, 1114, (N.D.Iowa 2000); Wainright v. Norris, 958 F.Supp. 426, 431-32 (E.D.Ark. 1996). See also Tompkins v. Secretary, Dept. of Corrections, 557 F.3d 1257, 1259 (11th Cir.) ("Section 2244(b)(3)(A) requires a district court to dismiss for lack of jurisdiction a second or successive petition for a writ of habeas corpus unless the petitioner has obtained an order authorizing the district court to consider it."), cert. denied, 555 U.S. 1161 (2009).

Petitioner might believe that he should be allowed to challenge his civil commitment order without a pre-authorization order from the Court of Appeals, because he is attempting to bring new claims that were not presented in Holly I. But that notion must be rejected. Even new claims based on new evidence cannot be raised in a second or successive habeas petition, without pre-authorization from the apposite federal appellate court. See Tompkins, 557 F.3d at 1260 (habeas claim based on new evidence cannot be entertained in a second or successive habeas petition without pre-authorization from the court of appeals). See also Crawford, 698 F.3d at 1088-89 ("the court of appeals may authorize a second or successive petition if `the factual predicate for the claim could not have been discovered previously through the exercise of due diligence' and `the facts underlying the claim . . . would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense'") (quoting 28 U.S.C. § 2244(b)(2)(B)).

In sum, this Court cannot entertain another federal habeas corpus petition challenging Petitioner's civil commitment order, unless he first seeks and obtains a preauthorization order from the Eighth Circuit Court of Appeals. Therefore, this case must be summarily dismissed for lack of jurisdiction. The United States District Court for the District of Minnesota cannot entertain any habeas claims challenging Petitioner's civil commitment order, unless the Eighth Circuit Court of Appeals first grants him permission to file a successive habeas petition.

To obtain a pre-authorization order for his current claims for relief, Petitioner will have to persuade the Court of Appeals that his claims satisfy the standard prescribed by 28 U.S.C. § 2244(b)(2). (See n. 5, supra.) If Petitioner can meet that requirement, and the Court of Appeals therefore grants him a pre-authorization order, he can then file a new habeas corpus petition in the District Court.

The Court will recommend that this action be dismissed without prejudice, so that Petitioner can resubmit his habeas claims in a new action, if he is able to secure a preauthorization order from the Court of Appeals as required by § 2244(b)(3)(A).7 Petitioner is advised, however, that this District Court will not entertain any future habeas corpus petition pertaining to his civil commitment order, unless the petition is accompanied by a pre-authorization order from the Eighth Circuit Court of Appeals, as required by § 2244(b).8

Having determined that this action must be summarily dismissed for lack of jurisdiction, the Court will also recommend that Petitioner's pending application to proceed in forma pauperis, (Docket No. 2), be summarily denied. See 28 U.S.C. § 1915(e)(2)(B)(ii); see also, Kruger v. Erickson, 77 F.3d 1071, 1074, n. 3 (8th Cir. 1996) (per curiam) (IFP application should be denied where habeas petition cannot be entertained).

III. CERTIFICATE OF APPEALABILITY

A § 2254 habeas corpus petitioner cannot appeal an adverse ruling on his petition unless he is granted a Certificate of Appealability, ("COA"). 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1). A COA cannot be granted, unless the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(3). To make such a showing, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. Daniel, 529 U.S. 473, 484 (2000).

Here, it is virtually certain that no other court, including the Eighth Circuit Court of Appeals, would decide that Petitioner's current habeas corpus claims should be adjudicated on the merits in the present action. The Court finds nothing novel, noteworthy or worrisome about this case that warrants appellate review. It is therefore recommended that Petitioner should not be granted a COA in this matter.

IV. RECOMMENDATION

Based upon the foregoing and all of the files, records, and proceedings herein,

IT IS HEREBY RECOMMENDED THAT:

1. Petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, (Docket No. 1), be DENIED;

2. Petitioner's application for leave to proceed in forma pauperis, ("IFP), (Docket No. 2), be DENIED;

3. This action be summarily DISMISSED WITHOUT PREJUDICE FOR LACK OF JURISDICTION; and

4. Petitioner should NOT be granted a Certificate of Appealability.