Filed: Jun. 29, 2016
Latest Update: Jun. 29, 2016
Summary: REPORT AND RECOMMENDATION G. R. SMITH , Magistrate Judge . Months ago this Court denied Anthony Reginald Peek's first 28 U.S.C. 2255 motion on the merits. 1 CR408-221, doc. 53, adopted, doc. 56, 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 We
Summary: REPORT AND RECOMMENDATION G. R. SMITH , Magistrate Judge . Months ago this Court denied Anthony Reginald Peek's first 28 U.S.C. 2255 motion on the merits. 1 CR408-221, doc. 53, adopted, doc. 56, 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 Wel..
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REPORT AND RECOMMENDATION
G. R. SMITH, Magistrate Judge.
Months ago this Court denied Anthony Reginald Peek's first 28 U.S.C. § 2255 motion on the merits.1 CR408-221, doc. 53, adopted, doc. 56, 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 Pinder, 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.").
Peek, 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), even though this Court basically denied him relief in his first § 2555 motion on what appears to be the same legal grounds that he raises now. See doc. 49 at 4; doc. 53 at 4-6. And indeed, he has. In re Peek, 16-13526 (11th Cir. June 13, 2016) (his successive § 2255 application). Evidently, he was unsure where to seek relief and thus has opted to make a protective filing here. Doc. 59.
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 18, 2016 signature-filed § 2255 motion (doc. 59 at 12) directly to that court for nunc pro tunc filing.2 Upon such transfer, the Probation Office shall file any Presentence Investigation Report under seal. While this all may be redundant, transfer ensures that any claim (or unique spin on one) raised here and but not in Peek will be placed before the Eleventh Circuit. Plus, transfer clears the motion from this Court's docket.
To that end, Peek's "Motion For Stay and Abeyance" (doc. 60) is DENIED as unnecessary (he has already met the June 26, 2016 deadline and his successiveness application awaits the Eleventh Circuit's ruling).
SO REPORTED AND RECOMMENDED.
