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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

vs. Case No: 3:96cr74/RV

3:06cv74/RV/MD

DARRELL GREEN

REPORT AND RECOMMENDATION

This matter is before the court upon defendant’s motion to vacate, set aside,

or correct sentence pursuant to 28 U.S.C. § 2255 (doc. 593). Rule 4(b) of the Rules

Governing Section 2255 Proceedings provides in part that “[i]f it plainly appears

from the face of the motion and any annexed exhibits and the prior proceedings in

the case that the movant is not entitled to relief in the district court, the judge shall

make an order for its summary dismissal and cause the movant to be notified.” After

a review of the record, it is the opinion of the undersigned that the motion is

successive and that it should be summarily dismissed.

I. BACKGROUND

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 he then challenged his conviction by means of a

motion to vacate pursuant to 28 U.S.C. § 2255. (Doc. 459). This motion was denied

(doc. 540), and defendant’s request for a certificate of appealability was denied in

August of 2005. (Doc. 586). Defendant filed the instant motion on January 8, 2006

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Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (holding that a pro se

inm ate’s notice of appeal was filed as of the time he placed it in the prison mailbox, thus creating the “prison

mailbox rule”); Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001) (absent evidence to the

contrary, court assumes that a pro se petition is delivered to prison authorities for mailing the date it was

signed); Adams v. United States, 173 F.3d 1339 (11th Cir. 1999). 

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The court also notes that the defendant’s motion is facially untim ely, and despite defendant’s attempt

to couch his claims as “jurisdictional” issues, so that he may escape the time bar, this is not an accurate

characterization. And even if it were, this does not allow him to circumvent the ban on second or successive

Case No: 3:96cr74/RV; 3:06cv41/RV/MD

pursuant to the prison mailbox rule.1 In the instant motion, defendant seeks relief

pursuant to the Supreme Court’s decisions in Blakely v. Washington, 542 U.S. 296,

124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and United States v. Booker, 543 U.S. 220, 125

S.Ct. 738, 160 L.Ed.2d 621 (2005). 

II. LEGAL ANALYSIS

A second or successive motion for § 2255 relief, which defendant concedes

this is, must be certified by the court of appeals upon motion to that court by the

applicant. 28 U.S.C. § 2244(b)(3) and § 2255; Felker v. Turpin, 518 U.S. 651, 116 S.Ct.

2333, 135 L.Ed.2d 827 (1996); In re Blackshire, 98 F.3d 1293 (11th Cir. 1996). A

three-judge panel of the court of appeals, § 2244(b)(3)(B), may authorize the filing of

a second or successive motion only if it determines that the motion contains claims

which rely on either:

(1) newly discovered evidence that, if proven and viewed in the 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.

28 U.S.C. § 2255. In re Dean, 375 F.3d 1287 (11th Cir. 2004). Defendant’s motion must

be dismissed, as the record does not reflect that he has either sought or obtained

authorization from the Eleventh Circuit Court of Appeals to file a second or

successive motion. See, In re Joshua, 224 F. 3d 1281, 1283 (11th Cir. 2000); Medina

v. Singletary, 960 F.Supp. 275 (M.D. Fla 1997).2 Furthermore, it is unlikely that he will

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motions absent authorization from the appropriate appellate court. 

Case No: 3:96cr74/RV; 3:06cv41/RV/MD

be able to obtain such certification, as Booker has not been held to be retroactive

to cases on collateral review. Varela v. United States, 400 F.3d 864, 866-868 (11th

Cir.), cert. denied, 126 S.Ct. 312, 163 L.Ed.2d 269 (2005); see also In re Anderson, 396

F.3d 1336 (11th Cir. 2005) (holding that only the Supreme Court can make a new rule

retroactive on collateral review, and that it must do so explicitly); Bey v. United

States, 399 F.3d 1266, 1269 (10th Cir. 2005) (“Booker may not be applied retroactively

to second or successive habeas petitions.”)

Based on the foregoing, it is respectfully RECOMMENDED:

The motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. §

2255 (doc. 593) be summarily DISMISSED as successive. 

At Pensacola, Florida, this 1st day of February, 2006.

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

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

days after being served a copy thereof. A copy of objections shall be served upon the

magistrate judge and all other parties. Failure to object may limit the scope of appellate

review of factual findings. See 28 U.S.C. § 636; Local Rule 27(B); United States v. Roberts,

858 F.2d 698, 701 (11th Cir. 1988).

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