Opinion
Civil Action No. 6:06CV18, (Crim. No. 6:95cr37).
January 25, 2006
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
The movant Kevin Davenport, an inmate currently confined in the Federal Correctional Institution in Seagoville, Texas, filed this motion to vacate or correct his sentence under 28 U.S.C. § 2255. The motion was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.
Davenport was convicted of conspiracy to distribute narcotics, selling or distributing narcotics, and carrying or possession of firearms in connection with a drug offense, receiving sentencing totaling 360 months in prison, followed by three years of supervised release. He has previously filed a direct appeal and a Section 2255 action, without success.
In his present Section 2255 motion, Davenport raises claims based upon United States v. Booker, 125 S.Ct. 738 (2005). He devotes considerable attention to arguing that his petition should not be barred by the statute of limitations, but acknowledges that this is the second Section 2255 petition which he has filed. See Davenport v. United States, civil action no. 6:98cv727 (E.D.Tex., dismissed May 28, 1999, certificate of appealability denied January 18, 2000).
Section 2255 states as follows:
A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain —
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
In this case, Davenport has filed a second or successive motion to vacate or correct his sentence under Section 2255, but has failed to show that he has sought or received authorization from the Fifth Circuit Court of Appeals to do so. Although he argues that his second motion is not successive because his first motioin was filed before Booker, this is an argument which should be presented to the Court of Appeals, for that Court's determination as to whether or not Davenport should be allowed to proceed with the present motion. See In re Elwood, 408 F.3d 211, 212 (5th Cir. 2005) (denying leave to file a second Section 2255 motion because Booker is not retroactive and therefore does not constitute "a new rule of law, made retroactive to cases on collateral review by the Supreme Court that was previously unavailable.") Because Davenport has failed to show that he has received permission from the Fifth Circuit Court of Appeals to pursue a second or successive Section 2255 motion, this proceeding must be dismissed until he has received such permission.
RECOMMENDATION
It is accordingly recommended that the above-styled motion to vacate or correct sentence for failure to obtain permission to proceed in a second or successive petition be dismissed without prejudice. Davenport may refile his motion at such time, and only at such time, as he obtains leave from the Fifth Circuit Court of Appeals to file a successive petition. 28 U.S.C. § 2255.
A party's failure to file objections to the findings, conclusions, and recommendations contained in this Report within ten days after service with a copy thereof shall bar that party from de novo review by the district judge of those findings, conclusions, and recommendations and, except upon grounds of plain error, from appellate review of the unobjected-to factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996) ( en banc).