Yates v. Westville Correctional Center Superintendent

Filing 29

OPINION AND ORDER DISMISSING 22 petition pursuant to 28 U.S.C. 2254 for lack of jurisdiction; DENYING 4 , 5 , 24 and 26 motions by petitioner Corey Yates. Signed by Judge Robert L Miller, Jr on 11/21/11. (cc: Yates at Westville Corr Facility)(jcp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
COREY LAMONT YATES,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.

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CAUSE NO. 1:11-CV-277 RM

OPINION AND ORDER
Corey Lamont Yates, a pro se prisoner, filed a habeas corpus petition pursuant to 28
U.S.C. § 2254 challenging his 2004 murder conviction in Allen County. (DE 22.) In Yates v.
Superintendent, 1:07-CV-985 (S.D. Ind. filed July 30, 2007), Mr. Yates challenged this same
2004 murder conviction. His petition was denied in November 2007 and he didn’t appeal
the judgment. Id.
This court has no jurisdiction to hear an unauthorized successive habeas corpus
petition. Burton v. Stewart, 549 U.S. 147, 157 (2007). Mr. Yates already filed a federal habeas
petition challenging his 2004 murder conviction. Regardless of whether the claims he is
attempting to present are new or the same as those previously presented, the petition must
be dismissed. “A claim presented in a second or successive habeas corpus application
under section 2254 that was presented in a prior application shall be dismissed.” 28 U.S.C.
§ 2244(b)(1). New claims may be presented under certain circumstances:
Before a second or successive application permitted by this section is filed in
the district court, the applicant shall move in the appropriate court of appeals
for an order authorizing the district court to consider the application.

28 U.S.C. § 2244(b)(3). Mr. Yates hasn’t obtained an order from the U.S. Court of Appeals
for the Seventh Circuit permitting him to proceed with any new claims. “A district court
must dismiss a second or successive petition, without awaiting any response from the
[state], unless the court of appeals has given approval for its filing.” Nunez v. United
States, 96 F.3d 990, 991 (7th Cir. 1996) (emphasis in original). The petition must be
dismissed.
For the reasons set forth above, the petition (DE 22) is DISMISSED for lack of
jurisdiction. The petitioner’s pending motions (DE 4, 5, 24, 26) are DENIED as moot.
SO ORDERED.
ENTERED: November 21 , 2011.

/s/ Robert L. Miller, Jr.
Judge
United States District Court
cc: C. Yates

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