Opinion
Case No. CV612-089 Case No. CR606-026
06-20-2014
CHARLES ANTHONY WILLIS, Movant, v. UNITES STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
Serving a 151-month sentence, doc. 1007, Charles Anthony Willis has filed a third 28 U.S.C. § 2255 motion, masquerading as an "Amended Petition." Doc. 1520. Willis challenges his sentence by invoking Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151 (2013) (extending what's known as the Apprendi doctrine to statutory minimum penalties by holding that "any fact that, by law, increases the penalty for a crime is an 'element' that must be submitted to the jury"). Doc. 1520 at 4-25. But "Alleyne's rule does not apply retroactively on collateral review." Chester v. Warden, 552 F. App'x 887, 891 (11th Cir. 2014); United States v. Winkelman, 746 F.3d 134, 136 (3rd Cir. 2014); McKeever v. United States, 2014 WL 2593328 at * 5 (S.D. Ga. June 9, 2014). Because Willis cannot meet § 2255's savings clause, his latest § 2255 motion must (doc. 1520) must be DENIED as successive.
The Court is citing only to the criminal docket and using its docketing software's pagination; it may not always line up with each paper document's printed pagination.
See Williams v. Warden. Fed. Bureau of Prisons, 713 F.3d 1332, 1343 (11th Cir. 2013) ([t]he savings clause of § 2255 applies to a claim when: 1) that claim is based upon a retroactively applicable Supreme Court decision; 2) the holding of that Supreme Court decision establishes the petitioner was convicted for a nonexistent offense; and, 3) circuit law squarely foreclosed such a claim at the time it otherwise should have been raised in the petitioner's trial, appeal, or first § 2255 motion."); Mendoza v. Hastings, 2014 WL 1665222 at * 3 (S.D. Ga. Apr. 25, 2014).
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Applying the Certificate of Appealability (COA) standards, the Court discerns no COA-worthy issues at this stage of the litigation, so no COA should issue. 28 U.S.C. § 2253(c)(1). And, as there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith. Thus, in forma pauperis status on appeal should likewise be DENIED. 28 U.S.C. § 1915(a)(3).
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA