Filed: Jul. 10, 2012
Latest Update: Jul. 10, 2012
Summary: REPORT AND RECOMMENDATION G.R. SMITH, Magistrate Judge. Having unsuccessfully litigated a 28 U.S.C. 2255 motion in 2001, CR499-001, doe. 196, 203 & 201; see also does. 302 & 311 ("out-of-time" attempt at a second 2255 motion), 1 Derrell Gaulden has filed a second, claiming things like a defective indictment and sentence, ineffective assistance of counsel, etc. Doc. 319 at 4-8, 14. A second or successive 28 U.S.C. 2255 motion must be certified to contain: (1) newly discovered evidence
Summary: REPORT AND RECOMMENDATION G.R. SMITH, Magistrate Judge. Having unsuccessfully litigated a 28 U.S.C. 2255 motion in 2001, CR499-001, doe. 196, 203 & 201; see also does. 302 & 311 ("out-of-time" attempt at a second 2255 motion), 1 Derrell Gaulden has filed a second, claiming things like a defective indictment and sentence, ineffective assistance of counsel, etc. Doc. 319 at 4-8, 14. A second or successive 28 U.S.C. 2255 motion must be certified to contain: (1) newly discovered evidence ..
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REPORT AND RECOMMENDATION
G.R. SMITH, Magistrate Judge.
Having unsuccessfully litigated a 28 U.S.C. § 2255 motion in 2001, CR499-001, doe. 196, 203 & 201; see also does. 302 & 311 ("out-of-time" attempt at a second § 2255 motion),1 Derrell Gaulden has filed a second, claiming things like a defective indictment and sentence, ineffective assistance of counsel, etc. Doc. 319 at 4-8, 14. A second or successive 28 U.S.C. § 2255 motion must be certified to contain: (1) newly discovered evidence that, when viewed as a whole, would be "sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found the movant guilty of the offense"; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court that was previously unavailable. 28 U.S.C. 2255(h)(1)-(2). See, e.g., In re Perez, ___ F.3d ___, 2012 WL 1889150 at * 1 (11th Cir. May 25, 2012). Gaulden does not even bother to acknowledge, let alone attempt to meet, that criteria.
More importantly, he has knocked on the wrong court's door. Successive motions go to the appellate court first. 28 U.S.C. § 2244(b)(3)(A); Adams v. Thaler, 679 F.3d 312, 2012 WL 1415094 at * 8 (5th Cir. 2012); Brown v. United States, 2012 WL 1664150 at * 1-2 (S.D. Ga. Apr. 13, 2012). Even so, his § 2255 motion would fail, as he has cited no new evidence or rule of constitutional law. Hence, his § 2255 motion must be DISMISSED, and his motion for appointment of counsel, doe. 320, is DENIED, as is his earlier Fed. R. Crim. P. 35(b)-based, "Motion To Compel."2 Doc. 316.
SO REPORTED AND RECOMMENDED.
