Opinion
407CV052, 499CR062.
July 16, 2007
ORDER
Defendant Earl C. Pinckney pled guilty to one Count of violating 21 U.S.C. § 841(a)(1) ("Distribution of Cocaine Hydrochloride"). 499CR062, doc. # 4. In 6/99, the Court sentenced him, inter alia, to 240 months in prison. Doc. #5. He unsuccessfully moved for 28 U.S.C. § 2255 relief in 2000. 400CV314, doc. # 18, 27.
In a reconsideration motion, defendant argued that the Court violated Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) ("any fact [other than a prior conviction] that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt"), when it sentenced him to 240 months. The Court then explained, however, that "there is no error, plain or otherwise, under Apprendi where the term of imprisonment is within the statutory maximum set forth in § 841(b)(1)(C) for a cocaine offense without regard to drug quantity." Doc. # 29 at 1 (quoting U.S. v. Gerrow, 232 F.3d 831, 834 (11th Cir. 2000)). Pinckney's sentence fell within that range.
In 2004, Pinckney filed another § 2255 motion and this Court dismissed it as successive. Doc. ## 39, 40, 48. In 2006, he once again moved for § 2255 relief, doc. # 54, arguing that he can proceed under § 2255's "savings clause." Doc. # 54 at 5-6. That clause authorizes successive movants like Pinckney to proceed under 28 U.S.C. § 2241 if they can show that § 2255's remedy "is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255 ¶ 5.
Put another way, defendants (like Pinckney) who challenge their sentence are relegated to invoking § 2255 and thus get only one bite at that apple (hence, additional motions are denied as successive) unless they can invoke § 2255's savings clause, which permits invocation of 28 U.S.C. § 2241, the general habeas statute. Campbell v. Yates, 2006 WL 2012334 at * 1 (11th Cir. 7/19/06) (unpublished). But the Eleventh Circuit had
established that § 2255's savings clause only applies when (1) the petitioner's claim is based on a retroactively applicable Supreme Court decision; (2) the holding of that decision established that the prisoner was convicted of a "nonexistent offense"; and (3) "circuit law squarely foreclosed such a claim at the time it otherwise should have been raised at the petitioner's trial, appeal, or first § 2255 motion."Id. "The burden of coming forward with evidence affirmatively showing the inadequacy or ineffectiveness of the § 2255 remedy rests with the movant." Id. As this Court had previously explained, Pinckney failed to make that showing, 499CR062, doc. # 55, so the Court again denied him relief. 400CV314, doc. # 86.
Rather than appeal that ruling, Pinckney simply exploited a costly flaw in this Court's docketing system by filing a brand new motion, this time under 28 U.S.C. § 2241, thus causing the Clerk's Office to open a new file rather than file the motion in the pre-existing, 499CR062 and 400CV314 files. Thus, the Court once again is dealing with essentially the same argument, different day, under this new file, 407CV052. The Magistrate Judge (MJ) has applied the proper analysis (no savings clause showing, this motion is simply a successive § 2255 in disguise), and Pinckney has appealed once again, doc. # 7, which forces this Court to construe it an implied motion for a Certificate of Appealability (COA). See Edwards v. U.S., 114 F.3d 1083, 1084 (11th Cir. 1997) (appeal notice is treated as implied COA application).
The implied COA motion (doc. # 7) is DENIED for the same reasons reached in denying Pinckey relief in 400CV314, as he has raised nothing new here other than to misuse § 2241 rather than § 2255. To the extent that doc. # 7 may be deemed an implied motion for leave to appeal in forma pauperis, it, too, is DENIED. The Clerk is directed to file all future Pinckney filings that seek any sort of habeas-related relief in the 499CR062 and 400CV314 files, and Pinckney is forewarned that any abusively serial filing before this Court will be met with harsh sanctions. See, e.g., Barber v. U.S. Attorney General, 458 F.Supp.2d 1378 (S.D.Ga. 2006).