Opinion
CASE NO. 8:14-CV-754-T-30MAP CRIM. CASE NO. 8:08-CR-331-T-30MAP
04-01-2014
DURWOOD MILTON GWYN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER
This matter is before the Court for consideration of Petitioner's motion to vacate, set aside, or correct an allegedly illegal sentence filed pro se pursuant to 28 U.S.C. § 2255 (CV Dkt. 1). A motion to vacate must be reviewed prior to service on the United States. See Rule 4 of the Rules Governing § 2255 Cases. If the "motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," the motion is properly dismissed without a response from the United States. 28 U.S.C. § 2255(b). Upon consideration of the § 2255 motion and the record, the Court concludes that the § 2255 motion must be dismissed as an unauthorized successive motion.
BACKGROUND
Petitioner pleaded guilty to possession with the intent to distribute 5 grams or more of cocaine base, and distribution of cocaine base (CR Dkts. 18, 19, 21). Petitioner was sentenced to a 262-month term of imprisonment, to be followed by a 96-month term of supervised release (CR Dkts. 20, 21). Petitioner did not appeal his convictions and sentences. Petitioner's request for collateral relief pursuant to 28 U.S.C. § 2255 was denied by this Court on July 15, 2010 (CR Dkt. 30); see Gwyn v. United States, Case No. 8:10-cv-395-T-30MAP (M.D. Fla. 2010).
Petitioner's second request for collateral relief was dismissed as a second § 2255 motion on August 22, 2013. See Gwyn v. United States, Case No. 8:13-cv-2149-T-30MAP (M.D. Fla. 2013).
DISCUSSION
Petitioner now returns to this Court seeking to vacate his sentence based upon Spencer v. United States, 727 F.3d 1076, 1080 (11th Cir. 2013). "[A] second or successive [§ 2255] motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals." 28 U.S.C. §2255(h). See also 28 U.S.C. § 2244(b)(3)(A). Because Petitioner has previously sought collateral relief pursuant to § 2255, and he has not demonstrated that he has obtained permission from the Eleventh Circuit Court of Appeals to file a second or successive motion, this Court is without jurisdiction to entertain the instant § 2255 motion. Darby v. Hawk-Sawyer, 405 F.3d 942, 944-45 (11th Cir. 2005). This case will, therefore, be dismissed without prejudice to allow Petitioner the opportunity to seek said authorization.
Spencer was vacated, and rehearing, en banc, granted by Spencer v. United States, 2014 U.S. App. LEXIS 4315 (11th Cir. Fla., Mar. 7, 2014).
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ACCORDINGLY, it is ORDERED that:
1. The motion to vacate, set aside, or correct an illegal sentence is DISMISSED, without prejudice, for lack of jurisdiction (CV Dkt. 1). The Clerk is directed to terminate from pending status the § 2255 motion (CR Dkt. 42) filed in the corresponding criminal case number 8:08-CR-331-T-30MAP.
2. The Clerk is directed to send Petitioner the Eleventh Circuit's application form for leave to file a second or successive § 2255 motion under 28 U.S.C. § 2244(b).
3. The Clerk shall terminate any and all pending motions and close this case.
CERTIFICATE OF APPEALABILITY AND LEAVE TO
APPEAL IN FORMA PAUPERIS DENIED
IT IS FURTHERED ORDERED that Petitioner is not entitled to a certificate of appealability. A prisoner seeking a motion to vacate has no absolute entitlement to appeal a district court's denial of his motion. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of appealability (COA). Id. "A [COA] may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at § 2253(c) (2). To make such a showing, a petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were 'adequate to deserve encouragement to proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). When a district court dismisses a federal habeas petition on procedural grounds without reaching the underlying constitutional claim, a COA should issue only when a petitioner shows "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack, 529 U.S. at 484. Because the instant § 2255 motion is clearly a successive motion, Petitioner cannot make the requisite showing in these circumstances. Finally, because Petitioner is not entitled to a COA, he is not entitled to appeal in forma pauperis.
DONE and ORDERED in Tampa, Florida on April 1, 2014.
_____________________
JAMES S. MOODY, JR.
UNITED STATES DISTRICT JUDGE
SA:sfc
Copy furnished to:
Counsel of Record
Petitioner, pro se