Filed: Jun. 27, 2016
Latest Update: Jun. 27, 2016
Summary: REPORT AND RECOMMENDATION G.R. SMITH , Magistrate Judge . Two years ago this Court denied Julius Pinkston's first 28 U.S.C. 2255 motion as untimely. 1 CR606-026, doc. 1548, certificate of appealability denied, doc. 1571, reconsideration denied, doc. 1571 (11th Cir. Mar. 6, 2015). In this, his second 2255 motion, doc. 1639, he seeks to exploit the new rule announced in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015), made retroactive by Welch v. United States, U
Summary: REPORT AND RECOMMENDATION G.R. SMITH , Magistrate Judge . Two years ago this Court denied Julius Pinkston's first 28 U.S.C. 2255 motion as untimely. 1 CR606-026, doc. 1548, certificate of appealability denied, doc. 1571, reconsideration denied, doc. 1571 (11th Cir. Mar. 6, 2015). In this, his second 2255 motion, doc. 1639, he seeks to exploit the new rule announced in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015), made retroactive by Welch v. United States, U...
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REPORT AND RECOMMENDATION
G.R. SMITH, Magistrate Judge.
Two years ago this Court denied Julius Pinkston's first 28 U.S.C. § 2255 motion as untimely.1 CR606-026, doc. 1548, certificate of appealability denied, doc. 1571, reconsideration denied, doc. 1571 (11th Cir. Mar. 6, 2015). In this, his second § 2255 motion, doc. 1639, he seeks to exploit the new rule announced in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015), made retroactive by Welch v. United States, U.S. ___, 136 S.Ct. 1257 (2016), and triggering a wave of successive § 2255 filings. See In re Fleur, ___ F.3d ___, 2016 WL 3190539 (11th Cir. June 8, 2016), In re Hines, ___ F.3d ___, 2016 WL 3189822 (11th Cir. June 8, 2016), and In re Ricardo Finder, Jr., ___ F.3d ___, 2016 WL 3081954 at *1 (11th Cir. June 1, 2016).
Some of those successive-writ movants have succeeded in knocking on the appellate court's door. See, e.g., In re Hubbard, ___ F.3d ___, 2016 WL 3181417 at *7 (June 8, 2016) ("Because application of Johnson to § 16(b) as incorporated into the Sentencing Guidelines might render the career-offender residual clause that was applicable at the time Hubbard was sentenced unconstitutional, and because the rule in Johnson is substantive with respect to its application to the Sentencing Guidelines and therefore applies retroactively, this Court grants Hubbard's request for authorization to file a successive § 2255 motion.").
Pinkston, too, must knock on the Eleventh Circuit's door. See In re Williams, ___ F.3d ___, 2016 WL 3460899 (11th Cir. June 24, 2016); In re Colon, No., ___ F.3d ___, 2016 WL 3461009 (11th Cir. June 24, 2016); In re Robinson, ___ F.3d ___, 2016 WL 1583616 (11th Cir. Apr. 19, 2016). But given the time constraints illuminated by the Robinson concurrence, 2016 WL 1583616 at *2 ("As best I can tell, all the prisoners we turned away may only have until June 26, 2016, to refile applications based on Johnson."), the Clerk should be DIRECTED to simply transfer his June 20, 2016 signature-filed § 2255 motion (doc. 1639 at 5) directly to that court for nunc pro tunc filing.2 Upon such transfer, the Probation Office shall file any Presentence Investigation Report under seal.
SO REPORTED AND RECOMMENDED.
