Opinion
Civil Action No. 2:14cv624-WHA (WO)
01-12-2015
LORENZO RAINER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
RECOMMENDATION OF THE MAGISTRATE JUDGE
This case is before the court on a pro se motion under 28 U.S.C. § 2255 filed on June 18, 2014, by federal inmate Lorenzo Rainer ("Rainer). (Doc. No. 1.) Rainer challenges the sentence imposed by this court in July 2009 following his conviction for possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). See Criminal Case No. 2:07cr151-MEF. He contends that his sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e), violates the United States Supreme Court's recent holding in Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276 (2013).
I. DISCUSSION
This is the second § 2255 motion filed by Rainer attacking the conviction and/or sentence imposed in Criminal Case No. 2:07cr151-MEF. Rainer's first § 2255 motion was filed on August 20, 2011. See Doc. No. 2, Civil Action No. 2:11cv414-MEF. This court decided all claims presented in that initial § 2255 motion adversely to Rainer. Id., Doc. No. 37, May 22, 2013, Recommendation of the Magistrate Judge, adopted as judgment of the District Court by final order of August 14, 2013, Doc. Nos. 51 & 52.
The Antiterrorism and Effective Death Penalty Act ("AEDPA") provides that, to file a second or successive § 2255 motion in the district court, the movant must first move in the appropriate court of appeals for an order authorizing the district court to consider the motion. See 28 U.S.C. § 2244(b)(3)(A). The appellate court, in turn, must certify that the second or successive § 2255 motion contains "(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." See 28 U.S.C. § 2255(h).
The pleadings and documents in this case reflect that Rainer has not received certification from the Eleventh Circuit Court of Appeals authorizing this court to consider a successive § 2255 motion. A district court lacks the jurisdiction to consider a successive § 2255 motion where the movant fails to obtain permission from the appellate court to file a successive motion. See, e.g., Farris v. United States, 333 F.3d 1211, 1216 (11 Cir. 2003); Boone v. Secretary, Dept. of Corrections, 377 F.3d 1315, 1317 (11 Cir. 2004). Accordingly, this court lacks the jurisdiction to consider Rainer's present motion, and the motion is due to be summarily dismissed.
II. CONCLUSION
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that the § 2255 motion be dismissed, as Rainer has failed to obtain the requisite order from the Eleventh Circuit Court of Appeals authorizing this court to consider a successive § 2255 motion.
It is further
ORDERED that the parties shall file any objections to this Recommendation on or before January 26, 2015. A party must specifically identify the findings in the Recommendation to which objection is made; frivolous, conclusive, or general objections will not be considered. Failure to file written objections to the Magistrate Judge's proposed findings and recommendations shall bar a party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11 Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11 Cir. 1981, en banc).
DONE, this 12 day of January, 2015.
/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE