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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

vs. Case Nos.: 3:96cr74/RV 

3:12cv271/RV/EMT

DARRELL GREEN

_______________________________________/

REPORT AND RECOMMENDATION

This matter is before the court upon Defendant’s motion under 28 U.S.C. § 2255 to vacate,

set aside, or correct sentence (doc. 690). Rule 4(b) of the Rules Governing Section 2255

Proceedings provides in part that “[i]f it plainly appears from the motion, any attached exhibits, and

the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss

the motion and direct the clerk to notify the moving party.” After a review of the record, it is the

opinion of the undersigned that the court is without jurisdiction to entertain Defendant’s motion and

that it should be summarily dismissed.

BACKGROUND and ANALYSIS

Defendant was sentenced to a term of life imprisonment after his conviction of controlled

substance offenses (doc. 359). His conviction and sentence were affirmed on appeal (doc. 427), and

Defendant then challenged his conviction by means of a motion to vacate under 28 U.S.C. § 2255

(doc. 459). This motion was denied (docs. 528, 540). Defendant filed another motion to vacate in

January of 2006, in which he sought relief pursuant to the Supreme Court’s decisions in Blakely v.

Washington, 542 U.S. 296 (2004) and United States v. Booker, 543 U.S. 220 (2005) (doc. 593). 

That motion was summarily dismissed as successive (see docs. 594, 596). In the instant motion, the

third such motion Defendant has filed, he seeks relief based on the Supreme Court’s decision in

DePierre v. United States, 131 S. Ct. 2225 (June 9, 2011), which, he asserts, is a new rule of law that

was “just made retroactive” (doc. 690 at 6).

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As Defendant is aware, before a second or successive application for § 2255 relief is filed

in the district court, he must move in the appropriate court of appeals for an order authorizing the

district court to consider the application. 28 U.S.C. § 2244(b)(3) and § 2255(h); Felker v. Turpin,

518 U.S. 651 (1996); United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005); Carter v. United

States, 405 Fed. Appx. 409 (11th Cir. 2010). This authorization is required even when, as here, a

defendant bases his motion on the existence of a new rule of constitutional law, made retroactive

to cases on collateral review by the Supreme Court, that was previously unavailable. 28 U.S.C.

§ 2255(h)(2). Defendant has not obtained authorization from the Eleventh Circuit Court of Appeals

to file a successive motion, despite the fact that he is clearly aware of the need to do so, based on

the dismissal of his previous successive § 2255 motion (doc. 596). Therefore, the instant motion to

vacate must be dismissed.

CERTIFICATE OF APPEALABILITY

As amended effective December 1, 2009, § 2255 Rule 11(a) provides that “[t]he district court

must issue or deny a certificate of appealability when it enters a final order adverse to the applicant,”

and if a certificate is issued “the court must state the specific issue or issues that satisfy the showing

required by 28 U.S.C. § 2253(c)(2).” A timely notice of appeal must still be filed, even if the court

issues a certificate of appealability. § 2255 11(b).

After review of the record, the court finds no substantial showing of the denial of a

constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483–84 (2000) (explaining how

to satisfy this showing) (citation omitted). Therefore, it is also recommended that the court deny a

certificate of appealability in its final order.

The second sentence of new Rule 11(a) provides: “Before entering the final order, the court

may direct the parties to submit arguments on whether a certificate should issue.” If there is an

objection to this recommendation by either party, that party may bring this argument to the attention

of the district judge in the objections permitted to this report and recommendation.

Case Nos. 3:96cr74/RV; 3:12cv271/RV//EMT

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Accordingly, it is respectfully RECOMMENDED:

1. Defendant’s motion to vacate pursuant to 28 U.S.C. § 2255 (doc. 690), be

SUMMARILY DISMISSED.

2. A certificate of appealability be DENIED.

At Pensacola, Florida, this 13th day of June 2012.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) days after being served a copy thereof. Any different deadline that may appear

on the electronic docket is for the court’s internal use only. A copy of objections shall be

served upon all other parties. Failure to object may limit the scope of appellate review of

factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir.

1988).

Case Nos. 3:96cr74/RV; 3:12cv271/RV//EMT

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