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Bowden v. U.S., 1:09-cr-00098-WSD (2016)

Court: District Court, N.D. Georgia Number: infdco20161004c31 Visitors: 22
Filed: Oct. 03, 2016
Latest Update: Oct. 03, 2016
Summary: OPINION AND ORDER WILLIAM S. DUFFEY, Jr. , District Judge . This matter is before the Court on Magistrate Judge Russell G. Vineyard's Final Report and Recommendation [129] ("R&R"), 1 recommending dismissal of Movant Gregory Todd Bowden's ("Movant") Motion to Vacate, Set Aside, or Correct Sentence Pursuant to Title 28 U.S.C. 2255 [126] ("Second Section 2255 Motion"). On August 13, 2012, Movant filed his first Section 2255 Motion [72]. On June 30, 2014, the Court denied Movant's first Se
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OPINION AND ORDER

This matter is before the Court on Magistrate Judge Russell G. Vineyard's Final Report and Recommendation [129] ("R&R"),1 recommending dismissal of Movant Gregory Todd Bowden's ("Movant") Motion to Vacate, Set Aside, or Correct Sentence Pursuant to Title 28 U.S.C. § 2255 [126] ("Second Section 2255 Motion").

On August 13, 2012, Movant filed his first Section 2255 Motion [72]. On June 30, 2014, the Court denied Movant's first Section 2255 motion on the merits [111]. On February 18, 2015, the Court of Appeals denied Movant a certificate of appealability ("COA"). On April 17, 2015, the Court of Appeals denied Movant's motion for reconsideration of its denial of the COA. On June 24, 2016, Movant, proceeding pro se, filed his Second Section 2255 Motion. On August 8, 2016, the Magistrate Judge issued his R&R, recommending that Movant's Second Section 2255 Motion be dismissed for lack of jurisdiction. Movant did not file objections to the R&R, and the Court thus reviews it for plain error. See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984).

A movant may not file a second or successive Section 2255 motion without authorization from the Eleventh Circuit. See 28 U.S.C. § 2255(h). Without this authorization, the district court "lacks jurisdiction to consider a second or successive motion." Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003). The Magistrate Judge found that, because Movant did not seek and the Eleventh Circuit did not authorize leave to file a successive Section 2255 motion, Movant's Second Section 2255 Motion should be dismissed for lack of jurisdiction. The Court finds no plain error in this determination. See Slay, 714 F.2d at 1095.

The Magistrate Judge also recommends the Court deny a certificate of appealability. A court may issue a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A substantial showing of the denial of a constitutional right "includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). The Magistrate Judge found the dismissal of Movant's Section 2255 Motion as impermissibly successive is not debatable by jurists of reason, and he recommends the Court deny a certificate of appealability. The Court finds no plain error in these findings and recommendation, and a certificate of appealability is denied. See Slay, 714 F.2d at 1095.

For the foregoing reasons,

IT IS HEREBY ORDERED that Magistrate Judge Russell G. Vineyard's Final Report and Recommendation [129] is ADOPTED.

IT IS FURTHER ORDERED that Movant Gregory Todd Bowden's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to Title 28 U.S.C. § 2255 [126] is DISMISSED.

IT IS FURTHER ORDERED that civil action number 1:16-cv-2327-WSD is DISMISSED.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

SO ORDERED.

FootNotes


1. Citations to the record, in this Order, refer to case number 1:09-cr-00098-WSD.
Source:  Leagle

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