Jackson-Bey v. United States of America

Filing 1

OPINION AND ORDER on Motion to Vacate, Set Aside or Correct Sentence (2255): it is DISMISSED for lack of jurisdiction. Signed by Judge Rudy Lozano on 10/15/13. cc: Jackson-Bey(mc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
vs.
HANEEF JACKSON-BEY,
Defendant/Petitioner.

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NO. 2:09-cr-43

OPINION AND ORDER
This matter is before the Court on the “Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody,” filed by Petitioner, Haneef Jackson-Bey, on
September 27, 2013 (DE #485). For the reasons set forth below, the
motion is DISMISSED for lack of jurisdiction.

BACKGROUND
On August 23, 2011, Jackson-Bey, pro se, filed a Petition
under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By
a Person in Federal Custody.

(DE #402.)

This Court entered an

order on January 23, 2012, denying the section 2255 petition.
#409.)

Jackson-Bey then filed a motion to reconsider.

The Court also denied the motion to reconsider.

(DE

(DE #421.)

(DE #422.)

DISCUSSION
Following a direct appeal, a defendant generally has one
opportunity to challenge his conviction and sentence.

Suggs v.

United States, 705 F.3d 279, 281-82 (7th Cir. 2013); 28 U.S.C. §
2255(a), (h).

Should a defendant wish to file a second or

successive section 2255 motion challenging that same conviction or
sentence, he must first gain authorization to do so from the court
of

appeals;

otherwise,

the

district

jurisdiction to consider the motion.
U.S.C. §§ 2244(a)-(b), 2255(h).

court

does

not

have

Suggs, 705 F.3d at 282; 28

In general, only those successive

motions which challenge the underlying conviction and present newly
discovered evidence of defendant’s innocence or rely on a new
retroactive constitutional law will be certified by the court of
appeals for district court review.
U.S.C. § 2255(h).

Suggs, 705 F.3d at 282-83; 28

“No matter how powerful a petitioner’s showing,

only [the Seventh Circuit] may authorize the commencement of a
second or successive petition.”
990, 991 (7th Cir. 1996).

Nunez v. United States, 96 F.3d

As the Nunez Court explained:

From the district court's perspective, it is
an allocation of subject-matter jurisdiction
to the court of appeals.
A district court
must dismiss a second or successive petition,
without awaiting any response from the
government, unless the court of appeals has
given approval for its filing. . . . A second
or successive collateral attack may no more
begin in the district court than a criminal
prosecution may commence in the court of
appeals.
2

Nunez, 96 F.3d at 991 (emphasis in original).
Because Jackson-Bey has already filed a section 2255 motion
with this Court, his current section 2255 motion is considered a
successive collateral attack on his sentence.

He has not obtained

permission from the Seventh Circuit Court of Appeals to file this
successive section 2255 motion, and, therefore, it is DISMISSED for
lack of jurisdiction.

DATED: October 15, 2013

/s/ RUDY LOZANO, Judge
United States District Court

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