UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 20-23422-CV-ALTONAGA 

CASE NO. 12-20719-CR-ALTONAGA 

MAGISTRATE JUDGE REID 

VICTOR MAY, 

 Movant, 

v. 

UNITED STATES OF AMERICA, 

 Respondent. 

 / 

REPORT OF MAGISTRATE JUDGE RE 

UNAUTHORIZED SUCCESSIVE MOTION - 28 U.S.C. § 2255 

I. Introduction

 Movant, Victor May, has filed this pro se motion to vacate [CV ECF No. 1], 

pursuant to 28 U.S.C. § 2255, challenging the constitutionality of his conviction for 

Hobbs Act Robbery and using a firearm during and in relation to a crime of violence, 

entered following a guilty plea in Case No. 12-20719-CR-ALTONAGA. For the 

reasons discussed below, this motion should be DISMISSED for lack of jurisdiction 

as an unauthorized successive § 2255 motion to vacate. 

 This cause has been referred to the undersigned for consideration and report 

pursuant to 28 U.S.C. § 636(b)(1)(B); (C); S.D. Fla. Admin. Order 2019-2; and, 

Rules 8 and 10 Governing Section 2255 Cases in the District Courts. 

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 Because summary dismissal is warranted, no order to show cause has been 

issued, and the government has not been required to file a response. See Broadwater 

v. United States, 292 F.3d 1302, 1303-04 (11th Cir. 2002) (a district court has the 

power under Rule 4 of the Rules Governing Section 2255 Cases to summarily 

dismiss a movant’s claim for relief so long as there is a sufficient basis in the record 

for an appellate court to review the district court’s decision). 

 The court has reviewed Movant’s filing [CV ECF No. 1], together with all 

pertinent portions of Movant’s underlying criminal file, and his prior § 2255 motion, 

assigned Case No. 18-CV-23385-ALTONAGA. The Court may take judicial notice 

of its own records in habeas proceedings. See Fed. R. Evid. 201. 

II. Relevant Procedural Background 

 Movant was charged with and convicted of multiple counts of Hobbs Act 

Robbery and using a firearm during and in relation to a crime of violence. [CR ECF 

Nos. 29, 60]. He was adjudicated guilty and sentenced to a total term of 360 months 

of imprisonment. [CR ECF No. 60 at 2]. Judgment was entered by the Clerk on July 

11, 2013. [Id.]. No direct appeal was prosecuted. Thus, Movant’s conviction became 

final on July 25, 2013, when the fourteen-day period for filing a notice of appeal 

expired. See Daniele v. United States, 740 F. App’x 973, 976 (11th Cir. 2018) (citing 

Fed. R. App. P. 4(b)(1)(A) (providing that a direct appeal must be filed within 14 

days of the judgment being entered) and Adams v. United States, 173 F.3d 1339, 

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1342 n.2 (11th Cir. 1999)). 

III. Discussion

 Critically, Movant previously filed his first § 2255 motion, assigned Case 

No. 18-CV-23385-ALTONAGA, which was denied as time-barred. See May v. 

United States, No. 18-CV-23385-ALTONAGA, Order Adopting Report and 

Recommendations [ECF No. 12] (S.D. Fla. Nov. 5, 2018). On April 8, 2019, the 

Eleventh Circuit Court of Appeals denied Petitioner’s request for a certificate of 

appealability, finding he failed to make a substantial showing of the denial of a 

constitutional right. See May v. United States, No. 18-CV-23385-ALTONAGA, 

Order of Dismissal of USCA [ECF No. 22] (S.D. Fla. Apr. 8, 2019). 

 Movant has now returned to this court, filing this second, unauthorized, 

successive § 2255 motion. [CV ECF No. 1]. He alleges that the indictment against 

him was unlawful. [Id. at 4]. 

 “Before presenting a second or successive motion, the moving party must 

obtain an order from the appropriate court of appeals authorizing the district court 

to consider the motion.” Rules Governing § 2255 Proceedings, Rule 9; Gonzalez v. 

Sec’y for Dep’t of Corr., 366 F.3d 1253, 1297-98 (11th Cir. 2004). As authorization 

has not been granted, this Court lacks jurisdiction to hear this latest § 2255 motion. 

See Burton v. Stewart, 549 U.S. 147, 153 (2007); Farris v. United States, 333 F.3d 

1211, 1216 (11th Cir. 2003). Thus, this unauthorized successive § 2255 motion 

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should be dismissed for lack of jurisdiction. 

 Lastly, because the court “lack[s] subject matter jurisdiction to consider the 

[instant] successive petition, [the court may] not issue a [certificate of 

appealability.]” See Williams v. Chatman, 510 F.3d 1290, 1295 (11th Cir. 2007) 

(citation omitted). 

IV. Recommendations 

Based on the foregoing, it is recommended that this case be DISMISSED for 

lack of jurisdiction as an unauthorized successive § 2255 motion, and the case 

CLOSED. 

Any party who objects to this recommendation or anything in it must, within 

fourteen days of the date of service of this document, file specific written objections 

with the Clerk of this court. Failure to do so will bar a de novo determination by the 

district judge of anything in the recommendation and will bar an attack, on appeal, 

of the factual findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); 

Thomas v. Arn, 474 U.S. 140, 149 (1985). 

Signed this 24th day of August, 2020. 

 

 UNITED STATES MAGISTRATE JUDGE 

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cc: Victor May 

00998-104 

Coleman I-USP 

United States Penitentiary 

Inmate Mail/Parcels 

Post Office Box 1033 

Coleman, FL 33521 

PRO SE 

 Alexandra Chase 

U.S. Attorney's Office 

500 South Australian Avenue 

Suite 400 

West Palm Beach, FL 33401 

561-209-1011 

Fax: 561-659-4526 

Email: alexandra.chase@usdoj.gov 

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