Opinion
Case No. 1:88-cr-01007-MP-AK.
June 29, 2006
ORDER
This matter is before the Court on Doc. 1097, Report and Recommendation of the Magistrate Judge, recommending that Plaintiff's "Complaints in Actions Grounded on Federal Question of a Special Federal Statute," Doc. 1093, be denied with prejudice. The Magistrate Judge filed the Report and Recommendation on Friday, May 26, 2006. The parties have been furnished a copy of the Report and Recommendation and have been afforded an opportunity to file objections. Pursuant to Title 28, United States Code, Section 636(b)(1), this Court must make a de novo review of those portions to which an objection has been made.
Defendant has filed objections to the Magistrate's Report, Doc. 1100. In his objections, the defendant claims that he is not seeking relief pursuant to 28 U.S.C. § 2255. While defendant argues that his motion should not be construed as a petition under § 2255, defendant is ultimately seeking to vacate his sentence. Specifically, defendant requests that this court enter an order "finding anyone sentenced under the mandatory provision[s] of [the] United States Sentencing Guidelines to be unconstitutionally sentenced." Doc. 1093 at 2. Therefore, defendant's motion is actually a request for a second or successive 28 U.S.C. § 2255 motion. See Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003) (citing Mobley v. Head, 306 F.3d 1096 (11th Cir. 2002)). Pursuant to 28 U.S.C. § 2255, "a second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals." Defendant has failed to obtain authorization from the court of appeals prior to filing this motion. In fact, the Eleventh Circuit has rejected such requests by the defendant. See Doc. 1083. Therefore, this Court is without jurisdiction to consider the Defendant's motion.See Farris, 333 F.3d at 1216.
Therefore, having considered the Report and Recommendation and all objections thereto filed, I have determined that the Report and Recommendation should be adopted with respect to its analysis and conclusion that defendant's filing constitutes an unauthorized second or successive 28 U.S.C. § 2255 motion. Since the court lacks jurisdiction to entertain defendant's claim, the action should be dismissed. Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. The Magistrate Judge's Report and Recommendation is adopted and incorporated by reference in this order in so far as it concludes that defendant's filing constitutes a second or successive 28 U.S.C. § 2255 motion.
2. Plaintiff's "Complaints in Actions Grounded on Federal Question of a Special Federal Statute," Doc. 1093, is DISMISSED.
DONE AND ORDERED.