Opinion
No. 1:21-cv-00734-JRS-DLP
05-17-2021
GREGORY JOEL JESSIE-BEY a/k/a ORZA SALONE, Petitioner, v. MARK SEVIER Warden of New Castle Correctional Facility, Respondent.
Order Dismissing Petition for a Writ of Habeas Corpus for Lack of Jurisdiction
Petitioner Gregory Jessie-Bey, aka Orza Salone, is incarcerated at New Castle Correctional Facility pursuant to an Indiana state court conviction. For the reasons explained in this Order, the Court dismisses Mr. Jessie-Bey's petition for a writ of habeas corpus for lack of jurisdiction.
I. Dismissal of Petition
On March 25, 2021, Mr. Jessie-Bey filed a petition for writ of habeas corpus challenging his conviction in Indiana cause number 34C01-9310-CF-00060. Mr. Jessie-Bey previously challenged this conviction in case number 3:13-cv-371 in the Northern District of Indiana, and his petition was denied as untimely on July 17, 2013. Salone v. Superintendent, 2013 WL 3777236 (N.D. Ind. July 17, 2013).
When there has already been a decision on the merits in a federal habeas action, a petitioner must obtain permission from the Court of Appeals under 28 U.S.C. § 2244(b) to initiate another round of federal review. See Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003). This statute, § 2244(b)(3), "creates a 'gatekeeping' mechanism for the consideration of second or successive [habeas] applications in district court." Felker v. Turpin, 518 U.S. 651, 657 (1996). "Section 2244(b)(3)(A) 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 the filing." In re Page, 170 F.3d 659, 661 (7th Cir. 1999) (internal quotation omitted) (emphasis in original). "The dismissal of a suit as untimely is a dismissal on the merits." Pavlovsky v. VanNatta, 431 F.3d 1063, 1064 (7th Cir. 2005). Thus, the Court ordered Mr. Jessie-Bey to show cause why his petition should not be dismissed as an unauthorized successive petition. Dkt. 4.
On May 12, 2021, Mr. Jessie-Bey requested permission from the Seventh Circuit Court of Appeals to pursue a successive petition, see Salone v. Sevier, Docket 21-1849, and he now moves this Court to stay his habeas petition while he awaits a decision on the application, dkt. [6]. But that application is pending; no approval has been given. Accordingly, this Court lacks jurisdiction over his petition for a writ of habeas corpus, and it is dismissed for lack of jurisdiction. Mr. Jessie-Bey's motion to stay the proceedings, dkt. [6], is denied. If Mr. Jessie-Bey receives permission from the Seventh Circuit, he may file another petition. Judgment consistent with this Order shall now issue.
II. Conclusion
Mr. Jessie-Bey's motion to stay the proceedings, dkt. [6], is denied, and his petition for a writ of habeas corpus is dismissed for lack of jurisdiction. Final judgment shall now issue.
IT IS SO ORDERED.
Date: 5/17/2021
/s/_________
JAMES R. SWEENEY II, JUDGE
United States District Court
Southern District of Indiana Distribution: GREGORY JOEL JESSIE-BEY
944875
NEW CASTLE - CF
NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels
1000 Van Nuys Road
NEW CASTLE, IN 47362