Filed: Jun. 29, 2016
Latest Update: Jun. 29, 2016
Summary: REPORT AND RECOMMENDATION G.R. SMITH , Magistrate Judge . Over a decade ago this Court denied Perry Mason's first 28 U.S.C. 2255 motion on the merits. CR499-238, doc. 41, adopted, doc. 51., certificate of appealability denied, doc. 53. In this, his numerically third 2255 motion, 1 doc. 101, he seeks to exploit the new rule announced in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015), made retroactive by Welch v. United States, ___ U.S. ___, 136 S.Ct. 1257 (20
Summary: REPORT AND RECOMMENDATION G.R. SMITH , Magistrate Judge . Over a decade ago this Court denied Perry Mason's first 28 U.S.C. 2255 motion on the merits. CR499-238, doc. 41, adopted, doc. 51., certificate of appealability denied, doc. 53. In this, his numerically third 2255 motion, 1 doc. 101, he seeks to exploit the new rule announced in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015), made retroactive by Welch v. United States, ___ U.S. ___, 136 S.Ct. 1257 (201..
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REPORT AND RECOMMENDATION
G.R. SMITH, Magistrate Judge.
Over a decade ago this Court denied Perry Mason's first 28 U.S.C. § 2255 motion on the merits. CR499-238, doc. 41, adopted, doc. 51., certificate of appealability denied, doc. 53. In this, his numerically third § 2255 motion,1 doc. 101, he seeks to exploit the new rule announced in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015), made retroactive by Welch v. United States, ___ U.S. ___, 136 S.Ct. 1257 (2016), and triggering a wave of successive § 2255 filings. See In re Fleur, ___ F.3d ___, 2016 WL 3190539 (11th Cir. June 8, 2016), In re Hines, ___ F.3d ___, 2016 WL 3189822 (11th Cir. June 8, 2016), and In re Ricardo Finder, Jr., ___ F.3d ___, 2016 WL 3081954 at * 1 (11th Cir. June 1, 2016).
Some of those successive-writ movants have succeeded in knocking on the appellate court's door. See, e.g., In re Hubbard, ___ F.3d ___, 2016 WL 3181417 at *7 (June 8, 2016) ("Because application of Johnson to § 16(b) as incorporated into the Sentencing Guidelines might render the career-offender residual clause that was applicable at the time Hubbard was sentenced unconstitutional, and because the rule in Johnson is substantive with respect to its application to the Sentencing Guidelines and therefore applies retroactively, this Court grants Hubbard's request for authorization to file a successive § 2255 motion.").
Mason, too, must knock on the Eleventh Circuit's door. See In re Williams, ___ F.3d ___, 2016 WL 3460899 (11th Cir. June 24, 2016); In re Colon, No., ___ F.3d ___, 2016 WL 3461009 (11th Cir. June 24, 2016); In re Robinson, ___ F.3d ___, 2016 WL 1583616 (11th Cir. Apr. 19, 2016). He may have already. See doc. 101 at 11 ("Enclosed you will find two copies of the proposed . . . § 2255 motion (successive) I request to be filed, and held in abeyance pending the Appellate Court decision to permit the District Court to entertain this motion.") A check of the Eleventh Circuit's docket, however, reveals no pending Mason petitions.
Given the time constraints illuminated by the Robinson concurrence, 2016 WL 1583616 at * 2 ("As best I can tell, all the prisoners we turned away may only have until June 26, 2016, to refile applications based on Johnson."), the Clerk should be DIRECTED to simply transfer Mason's June 23, 2016 signature-filed § 2255 motion (doc. 101 at 10) directly to that court for nunc pro tunc filing.2 Upon such transfer, the Probation Office shall file any Presentence Investigation Report under seal. While this all may be redundant, transfer ensures that any claim (or unique spin on one) raised here but not in Mason's filing with the Eleventh Circuit (if any) will be placed before that court. Plus, transfer clears the motion from this Court's docket.
SO REPORTED AND RECOMMENDED.
