UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 26, 2006*
Decided April 28, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 05-4342
DAVID PANNELL, Appeal from the United States District
Petitioner-Appellant, Court for the Northern District of Indiana,
South Bend Division
v.
No. 3:05cv0242
CECIL DAVIS, Superintendent,
Respondent-Appellee. Allen Sharp,
Judge.
ORDER
David Pannell, a prisoner confined in the Indiana prison system, was
convicted of disruptive conduct by a Conduct Adjustment Board (CAB) and lost 30
days of earned good-time credits. He petitioned the district court for a writ of
habeas corpus, 28 U.S.C. § 2254; the district court granted a conditional writ and
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-4342 Page 2
sent the case back for a new hearing. After a second hearing, Pannell was again
convicted of disruptive conduct, this time his penalty was increased to a loss of an
additional 30 days or 60 days of earned good-time credits. Pannell then filed
several motions with the district court under his original case number. At least one
requested an “unconditional writ of habeas corpus” and alleged deficiencies in his
second hearing. The district court denied his petition on the merits and Pannell
appealed. We affirmed on Pannell’s claim that he received inadequate notice of the
second hearing. See Pannell v. Davis, No. 05-1550, 2006 WL 408672 (7th Cir. Feb.
23, 2006) (unpublished order).
While his appeal was pending, Pannell filed a second habeas corpus petition
challenging the second CAB hearing, again alleging deficient notice. The second
petition was assigned a new case number, and the district court denied it on the
merits. Pannell now appeals the district court’s denial of his second petition
attacking the second hearing, again contending that he received untimely notice.
Because Pannell has previously filed a collateral attack on his second hearing,1 the
second petition was successive. And successive petitions require prior approval of
the court of appeals. See 28 U.S.C. § 2244(b)(3)(A). Because Pannell did not have
our approval, the district court should have dismissed the petition for lack of subject
1
Pannell’s initial collateral attack on the second CAB hearing was not
mislabeled---Pannell specifically requested habeas corpus relief---so the district
court was under no obligation to warn Pannell that his first petition exhausted his
right to federal collateral review of the second CAB hearing. See Castro v. United
States, 540 U.S. 375, 383 (2003).
No. 05-4342 Page 3
matter jurisdiction. See Harris v. Cotton, 296 F.3d 578, 579 (7th Cir. 2002) (section
2244(b) applies to § 2254 petitions challenging sanctions imposed in prison
disciplinary proceedings); Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996).
Finally, in order to pre-empt additional filings by Pannell in this matter,
thereby preserving judicial resources, we construe his notice of appeal as an implied
application for leave to file a successive § 2254 petition. See Nunez, 96 F.3d at 991-
92. The implied application is denied because Pannell presented the inadequate
notice claim in his first petition attacking the second hearing. See § 2244(b)(1).
Accordingly, the judgment of the district court is VACATED and the case is
REMANDED with instructions to dismiss for lack of jurisdiction. Additionally,
Pannell’s implied application for leave to file a successive § 2254 motion is
DENIED.