Opinion
NO. 2:09-cr-43
2013-10-15
UNITED STATES OF AMERICA, Plaintiff/Respondent, v. HANEEF JACKSON-BEY, Defendant/Petitioner.
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. (DE #409.) Jackson-Bey then filed a motion to reconsider. (DE #421.) The Court also denied the motion to reconsider. (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 court does not have jurisdiction to consider the motion. Suggs, 705 F.3d at 282; 28 U.S.C. §§ 2244(a)-(b), 2255(h). 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. Suggs, 705 F.3d at 282-83; 28 U.S.C. § 2255(h). "No matter how powerful a petitioner's showing, only [the Seventh Circuit] may authorize the commencement of a second or successive petition." Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996). 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.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.
RUDY LOZANO, Judge
United States District Court