Opinion
CRIMINAL ACTION NO. 1:06-CR-325-ODE-LTW CIVIL ACTION NO. 1:13-CV-3477-ODE-LTW
11-25-2013
JERALD JEROME DORSEY, Movant, v. UNITED STATES OF AMERICA, Respondent.
MOTION TO VACATE
28 U.S.C. § 2255
ORDER
Movant is a federal prisoner who, pro se, recently filed a second motion to vacate his sentence under 28 U.S.C. § 2255. (Doc. 130 in 1:06-cr-325-ODE-LTW.) The Court denied Movant's first § 2255 motion in February 2010. (Doc. 107.)
Magistrate Judge Walker issued a Report and Recommendation that Movant's second § 2255 motion be denied as a successive motion over which the Court lacks jurisdiction. (Doc. 131 ("R&R").) Movant filed objections to the R&R. (Doc. 133.)
A district judge must conduct a "careful and complete" review of a magistrate judge's R&R. Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982). This review takes different forms, depending on whether there are objections to the R&R. The district judge must "make a de novo determination of those portions of the [R&R] to which objection is made/' 28 U.S.C. § 636(b)(1)(C), while those portions of the R&R for which there is no objection are reviewed only for clear error, Macort v. Prem, Inc., 208 F. App'x 781, 784 (11th Cir, 2006).
Movant does not dispute that his current motion is the second § 2255 motion he has filed. Nor does he dispute that he has not obtained permission from the U.S. Court of Appeals for the Eleventh Circuit to file another § 2255 motion. He instead argues that Begay v. United States, 553 U.S. 137 (2008) demonstrates that his sentence was unlawfully enhanced and that he can challenge the enhancement pursuant to Spencer v. United States, 727 F.3d 1076 (11th Cir. 2013). (Doc. 133.)
Even if Movant is correct that his sentence is unlawful based on Begay or some other retroactively applicable ruling from the U.S. Supreme Court, only the Court of Appeals has the power to decide whether Movant can assert that claim in a successive § 2255 motion. A successive § 2255 motion "must be certified as provided in [28 U.S.C.] section 2244 by a panel of the appropriate court of appeals to contain . . . a new rule of constitutional law," 28 U.S.C. § 2255(h) (emphasis added). Spencer does not change that fact because the Begay claim at issue in Spencer was presented in the defendant's first § 2255 motion. Spencer, 727 F.3d at 1080 (describing issue as whether defendant could "use a timely-filed first motion under 28 U.S.C. § 2255 to pursue" the Begay claim). Unlike Spencer, Movant presented his Begay claim in a second § 2255 motion three years after the Court denied his first § 2255 motion.
Movant must present his claim to the Court of Appeals to obtain permission to file another § 2255 motion. This Court lacks jurisdiction over Movant's claim unless the Court of Appeals allows him to present it in a successive § 2255 motion. See United States v. Holt; 417 F.3d 1172, 1175 (11th Cir. 2005).
Accordingly, the Court OVERRULES Movant's objections [133] and ADOPTS the R&R [131] as the opinion of the Court. Movant's second motion challenging his sentence under § 2255 [130] is DENIED as a successive § 2255 motion over which the Court lacks jurisdiction. A certificate of appealability is DENIED. Civil action number 1:13-cv-3477-ODE-LTW is DISMISSED.
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ORINDA D. EVANS
UNITED STATES DISTRICT JUDGE