Opinion
Case No.: 3:00cr75/LAC/CJK Case No.: 3:14cv608/LAC/CJK
11-06-2014
UNITED STATES OF AMERICA v. ERIC LONDREY GRIFFIN
REPORT AND RECOMMENDATION
This matter is before the court upon Defendant's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (Doc. 114). Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts provides in part that "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party." After a review of the record, it is the opinion of the undersigned that the court does not have jurisdiction to entertain Defendant's motion and that it should be summarily dismissed.
BACKGROUND and ANALYSIS
Defendant was sentenced to three concurrent terms of 295 months imprisonment after a jury found him guilty of three charges of possession of a firearm by a convicted felon. (Docs. 58, 72). Defendant's conviction and sentence were affirmed on appeal in December of 2001. (Doc. 105). In 2007, he challenged his conviction by means of a motion to vacate pursuant to 28 U.S.C. § 2255. (Doc. 108). This motion was denied as untimely without objection from Defendant. (Docs. 111-113). Defendant has now filed another motion to vacate in which he seeks relief pursuant to the recent Supreme Court decision in Descamps v. United States, 133 S.Ct. 1924 (2013), which, he suggests, announced a new substantive rule that is retroactively applicable to his case.
This court does not have jurisdiction to entertain Defendant's motion. Before a second or successive application for § 2255 relief is filed in the district court, the litigant must typically move in the appropriate court of appeals for an order authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3) and § 2255(h); Felker v. Turpin, 518 U.S. 651 (1996); United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005); Carter v. United States, 405 Fed. App'x 409 (11th Cir. 2010). Defendant's successive motion falls within the larger subset of cases for which such authorization is required, as he is challenging the same judgment he challenged in his initial motion. This authorization is required even when, as here, a defendant asserts that his motion is based on the existence of a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. 28 U.S.C. § 2255(h)(2). Furthermore, the fact that Defendant's first motion was dismissed as untimely does not affect the analysis, as this dismissal constituted a dismissal with prejudice. See Carter v. United States, 405 F. App'x 409 (11th Cir. 2010). Therefore, because Defendant has not obtained authorization from the Eleventh Circuit Court of Appeals to file a successive motion, the instant motion to vacate must be dismissed without prejudice.
CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United States District Court ("§ 2255 Rules") provides that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant," and if a certificate is issued "the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. Rule 11(b), § 2255 Rules.
After review of the record, the court finds no substantial showing of the denial of a constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (explaining how to satisfy this showing) (citation omitted). Therefore, it is also recommended that the court deny a certificate of appealability in its final order.
The second sentence of Rule 11(a) provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." If there is an objection to this recommendation by either party, that party may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation.
Accordingly, it is respectfully RECOMMENDED:
1. Defendant's motion to vacate pursuant to 28 U.S.C. § 2255 (doc. 114), be SUMMARILY DISMISSED, as this court lacks jurisdiction to consider a successive motion absent authorization from the Eleventh Circuit.
2. A certificate of appealability be DENIED.
At Pensacola, Florida, this 6th day of November, 2014.
/s/_________
CHARLES J. KAHN, JR.
UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES
Any objections to these proposed findings and recommendations must be filed within fourteen (14) days after being served a copy thereof. Any different deadline that may appear on the electronic docket is for the court's internal use only. A copy of objections shall be served upon all other parties. Failure to object may limit the scope of appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).
Descamps was decided on June 20, 2013. Although Defendant's motion is dated June 17, 2014 (see doc. 114 at 14), the clerk did not receive the motion until October 27, 2014. The purported reason for this delay is that one of Defendant's Correctional Counselors provided him with the wrong address for the court. (See id. at 29, 30). The court notes that counselor's memorandum is dated September 30, 2014, but the envelope containing Defendant's motion is dated October 24, 2014. In any event, because the motion is successive, neither its timeliness nor Defendant's diligence in filing the motion is at issue.