Filed: Jun. 28, 2016
Latest Update: Jun. 28, 2016
Summary: REPORT AND RECOMMENDATION G. R. SMITH , Magistrate Judge . Having unsuccessfully sought 28 U.S.C. 2255 relief in 2013, CR408-315, doc. 1471, Antonio D. Woodley moves "this Court to hold petitioner's deadline filing date as I wait for (11th Cir.) Court approval for filing a Second or Successive [ 2255] Petition pursuant to Johnson , 13-7120 cumalating [sic] with Welch retroactivity [sic]." 1 Doc. 1572. The Eleventh Circuit docket confirms this: In re: Antonio Woodley , No. 16-13774
Summary: REPORT AND RECOMMENDATION G. R. SMITH , Magistrate Judge . Having unsuccessfully sought 28 U.S.C. 2255 relief in 2013, CR408-315, doc. 1471, Antonio D. Woodley moves "this Court to hold petitioner's deadline filing date as I wait for (11th Cir.) Court approval for filing a Second or Successive [ 2255] Petition pursuant to Johnson , 13-7120 cumalating [sic] with Welch retroactivity [sic]." 1 Doc. 1572. The Eleventh Circuit docket confirms this: In re: Antonio Woodley , No. 16-13774 (..
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REPORT AND RECOMMENDATION
G. R. SMITH, Magistrate Judge.
Having unsuccessfully sought 28 U.S.C. § 2255 relief in 2013, CR408-315, doc. 1471, Antonio D. Woodley moves "this Court to hold petitioner's deadline filing date as I wait for (11th Cir.) Court approval for filing a Second or Successive [§ 2255] Petition pursuant to Johnson, 13-7120 cumalating [sic] with Welch retroactivity [sic]."1 Doc. 1572. The Eleventh Circuit docket confirms this: In re: Antonio Woodley, No. 16-13774 (11th Cir. June 20, 2016). Woodley's motion is DENIED as unnecessary. Doc. 1471. His Eleventh Circuit successiveness application court met the June 26, 2016 deadline for Johnson claims as illuminated in In re Robinson, ___ F.3d ___, 2016 WL 1583616 at * 2 (11th Cir. April 19, 2016).
That filing stopped the § 2255(f) clock. See § 2255(h) (referencing certification requirement "as provided in [28 U.S.C. § 2244]"); 28 U.S.C. § 2244(d)(2) (stopping the one-year 2255(f) clock for any "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment. . . .") (emphasis added); see also Martin v. Ramirez, 2016 WL 447600 at * 2 (D. Idaho Feb. 4, 2016) (reminding that the clock is not stopped between final rulings during the post-conviction review process).
Likewise, Woodley's June 24, 2016 docket-filed § 2255 motion (he signed it on June 22, 2016, doc. 1573 at 5) should be DISMISSED as successive, but for good measure the Clerk should be DIRECTED to transfer it directly to the Eleventh Circuit Court of Appeals.2 Otherwise, he should be DENIED a certificate of appealability pursuant to Rule 11 of the Rules Governing Section 2255 Cases because he has made no substantial showing of the denial of a constitutional right within the meaning of 28 U.S.C. § 2253(c)(2).
SO REPORTED AND RECOMMENDED.
