Filed: Apr. 29, 2016
Latest Update: Apr. 29, 2016
Summary: ORDER J. RANDAL HALL , District Judge . Leonardo Clemente-Bernabe pled guilty to illegally reentering this country after deportation. Doc. 31 (plea agreement); doc. 29 (judgment). 1 As explained in the denial of his first 2255 motion, he waived both his right to a direct appeal and to collateral review. Doc. 42 at 5, adopted, doc. 46; see also doc. 52 (Order dismissing his motion to supplement that 2255 motion); doc. 53 (Certificate of Appealability motion denied); doc. 65 (Order
Summary: ORDER J. RANDAL HALL , District Judge . Leonardo Clemente-Bernabe pled guilty to illegally reentering this country after deportation. Doc. 31 (plea agreement); doc. 29 (judgment). 1 As explained in the denial of his first 2255 motion, he waived both his right to a direct appeal and to collateral review. Doc. 42 at 5, adopted, doc. 46; see also doc. 52 (Order dismissing his motion to supplement that 2255 motion); doc. 53 (Certificate of Appealability motion denied); doc. 65 (Order d..
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ORDER
J. RANDAL HALL, District Judge.
Leonardo Clemente-Bernabe pled guilty to illegally reentering this country after deportation. Doc. 31 (plea agreement); doc. 29 (judgment).1 As explained in the denial of his first § 2255 motion, he waived both his right to a direct appeal and to collateral review. Doc. 42 at 5, adopted, doc. 46; see also doc. 52 (Order dismissing his motion to supplement that § 2255 motion); doc. 53 (Certificate of Appealability motion denied); doc. 65 (Order denying "yet another filing in his apparent quest to exhaust every avenue imaginable to attack his conviction and sentence"). Raising a Johnson claim,2 he again moves for 28 U.S.C. § 2255 relief. Doc. 77 at 4, 11, 13-29.
The Magistrate Judge recommends that the Court grant the Government's motion to dismiss on successiveness grounds. Doc. 82. The Government correctly points out (doc. 81 at 2-3) that Clemente-Bernabe must knock on the Eleventh Circuit's door before coming here. See 28 U.S.C. § 2255(h) (prohibiting second or successive motions unless first certified by the Court of Appeals to contain newly discovered, acquittal mandating, evidence, or a new rule of constitutional law, made retroactive by the Supreme Court). And even though Welch v. United States, ___ U.S. ___, 2016 WL 1551144 (Apr. 18, 2016) has since made Johnson retroactive, thus authorizing certification of successive motions under § 2244(b)(2)(A) and § 2255(h), In re Robinson, ___ F.3d ___, 2016 WL 1583616 at *2 (11th Cir. April 19, 2016), that still does not excuse movant from knocking on the wrong (this Court's) door.
Hence, Clemente-Bernabe objections are OVERRULED, the Report and Recommendation of the Magistrate Judge (doc. 82) is ADOPTED as the opinion of the Court, and the Government's Motion to Dismiss (doc. 81) is therefore GRANTED. But given the timing issue noted by the Robinson concurrence, 2016 WL 1583616 at * 2 (a June 26, 2016 deadline looms for the those who seek to invoke Johnson), the Clerk is DIRECTED to transfer this case directly to the Eleventh Circuit Court of Appeals, where movant will be free to seek leave to file a successive § 2255 motion.
ORDER ENTERED.
