Filed: Jun. 13, 2012
Latest Update: Jun. 13, 2012
Summary: REPORT AND RECOMMENDATION G.R. SMITH, Magistrate Judge. Having unsuccessfully litigated a 28 U.S.C. 2255 motion in 2008, CR405-281, doc. 66, 1 Eric Rondell Gabe has filed a successive motion, again raising ineffective assistance of counsel (IAC) claims. He cites as justification the "new rule of law" 2 articulated in Martinez v. Ryan, 566 U.S. ___, 132 S.Ct. 1309 (2012). Doc. 76 at 2-3. Martinez held that in states where a defendant is formally barred from raising an ineffective ass
Summary: REPORT AND RECOMMENDATION G.R. SMITH, Magistrate Judge. Having unsuccessfully litigated a 28 U.S.C. 2255 motion in 2008, CR405-281, doc. 66, 1 Eric Rondell Gabe has filed a successive motion, again raising ineffective assistance of counsel (IAC) claims. He cites as justification the "new rule of law" 2 articulated in Martinez v. Ryan, 566 U.S. ___, 132 S.Ct. 1309 (2012). Doc. 76 at 2-3. Martinez held that in states where a defendant is formally barred from raising an ineffective assi..
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REPORT AND RECOMMENDATION
G.R. SMITH, Magistrate Judge.
Having unsuccessfully litigated a 28 U.S.C. § 2255 motion in 2008, CR405-281, doc. 66,1 Eric Rondell Gabe has filed a successive motion, again raising ineffective assistance of counsel (IAC) claims. He cites as justification the "new rule of law"2 articulated in Martinez v. Ryan, 566 U.S. ___, 132 S.Ct. 1309 (2012). Doc. 76 at 2-3. Martinez held that in states where a defendant is formally barred from raising an ineffective assistance of counsel claim against trial counsel until the collateral appeal phase of his case, a prisoner may now establish cause to overcome procedural default of a substantial IAC claim in two circumstances: (1) where he was not appointed counsel in that initial-review, collateral proceeding to litigate the IAC claim; and (2) where appointed counsel, in that initial-review collateral proceeding, ineffectively litigates the IAC claim itself. Martinez, 132 S. Ct. at 1320-21.
Gabe — convicted and sentenced in the federal system — does not even hint at a rational way that Martinez can be applied to him. And Martinez did not announce a new rule of law, despite its dissent's insistence to the contrary. Id. at 1324 ("The Court would have us believe that today's holding is no more than a "limited qualification" to Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)."); see also Adams v. Thaler, ___ F.3d ___, 2012 WL 1415094 at * 10 n. 6 (5th Cir. Apr. 25, 2012) (rejecting successive petition and similar new rule contention: "Martinez does not provide a basis for authorization under § 2244(b)(2)(A), as the Court's decision was an `equitable ruling' that did not establish `a new rule of constitutional law.' 132 S. Ct. at 1319.").
More fundamentally, Gabe has knocked on the wrong court's door. Successive motions go to the appellate court first. Adams, 2012 WL 1415094 at * 1; Brown v. United States, 2012 WL 1664150 at * 2 (S.D. Ga. Apr. 13, 2012). Even so, Gabe's § 2255 motion would fail, as he has cited no new evidence or rules of constitutional law.3 Hence, his § 2255 motion must be DISMISSED.
SO REPORTED AND RECOMMENDED.
