Filed: Jun. 24, 2014
Latest Update: Jun. 24, 2014
Summary: REPORT AND RECOMMENDATION CHARLES J. KAHN, Jr., Magistrate Judge. This matter is before the court upon Defendant's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. 2255 (doc. 69). Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts provides in part that "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the
Summary: REPORT AND RECOMMENDATION CHARLES J. KAHN, Jr., Magistrate Judge. This matter is before the court upon Defendant's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. 2255 (doc. 69). Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts provides in part that "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the ..
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REPORT AND RECOMMENDATION
CHARLES J. KAHN, Jr., Magistrate Judge.
This matter is before the court upon Defendant's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (doc. 69). Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts provides in part that "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party." After a review of the record, it is the opinion of the undersigned that the court is without jurisdiction to entertain Defendant's motion and that it should be summarily dismissed.1
BACKGROUND and ANALYSIS
Defendant was sentenced to a term of life imprisonment in September of 1996 after his conviction of controlled substance offenses (doc. 26). He did not appeal, and filed his first motion to vacate in June of 2001 (doc. 37). The motion was summarily dismissed as untimely (docs. 38-41). The Eleventh Circuit denied Defendant's request for a certificate of appealability and dismissed his appeal (doc. 62). In 2006, Defendant filed a motion for writ of audita querela, which the district court denied initially and on reconsideration (docs. 65-68). Defendant has now filed another motion to vacate in which he seeks relief pursuant to the recent Supreme Court decision in Descamps v. United States, 133 S.Ct. 1924 (2013), which he suggests announced a new substantive rule that is retroactively applicable to his case.
This court does not have jurisdiction to entertain Defendant's motion. Before a second or successive application for § 2255 relief is filed in the district court, the litigant must typically move in the appropriate court of appeals for an order authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3) and § 2255(h); Felker v. Turpin, 518 U.S. 651 (1996); United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005); Carter v. United States, 405 Fed. App'x 409 (11th Cir. 2010). Defendant's successive motion falls within the larger subset of cases for which such authorization is required, as he is challenging the same judgment he challenged in his initial motion. This authorization is required even when, as here, a defendant asserts that his motion is based on the existence of a new rule of law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.2 28 U.S.C. § 2255(h)(2). Defendant has not obtained authorization from the Eleventh Circuit Court of Appeals to file a successive motion, and therefore, the instant motion to vacate must be dismissed without prejudice.
CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United States District Court ("§ 2255 Rules") provides that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant," and if a certificate is issued "the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. Rule 11(b), § 2255 Rules.
After review of the record, the court finds no substantial showing of the denial of a constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (explaining how to satisfy this showing) (citation omitted). Therefore, it is also recommended that the court deny a certificate of appealability in its final order.
The second sentence of Rule 11(a) provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." If there is an objection to this recommendation by either party, that party may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation.
Accordingly, it is respectfully RECOMMENDED:
1. Defendant's motion to vacate pursuant to 28 U.S.C. § 2255 (doc. 69), be SUMMARILY DISMISSED.
2. A certificate of appealability be DENIED.
