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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

v. Case Nos. 3:96cr61/RV/CJK

3:12cv293/RV/CJK

JOHNNIE CHARLES REED

_____________________________/

REPORT AND RECOMMENDATION

This matter is before the court upon Defendant’s amended motion to vacate,

set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (doc. 346). The

Government has filed a response (doc. 352) and Defendant has filed a reply (doc.

354). The case was referred to the undersigned for the issuance of all preliminary

orders and any recommendations to the district court regarding dispositive matters. 

See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b). 

After a review of the record, it is the opinion of the undersigned that the court does

not have jurisdiction to entertain Defendant’s motion and that itshould be dismissed.

BACKGROUND and ANALYSIS

In February of 1997, the court sentenced Defendant to a term of life

imprisonment after his conviction of controlled substance offenses (doc. 116). His

conviction and sentence were affirmed on appeal (doc. 197). Defendant then

challenged his conviction by means of a motion to vacate pursuant to 28 U.S.C. §

2255 (doc. 206). The court denied this motion in 2010 over Defendant’s objection

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(see docs. 228, 232, 234). The Eleventh Circuit denied Defendant’s request for a

certificate of appealability (doc. 269). 

Defendant has now filed another motion to vacate in which he seeks relief

pursuant to the Supreme Court’s decision in DePierre v. United States, 131 S.Ct.

2225 (2011). This court does not have jurisdiction to entertain Defendant’s motion. 

Before a second or successive application for § 2255 relief is filed in the district

court, the litigant must typically 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. App’x 409 (11th Cir.

2010). Defendant’s successive motion falls within the larger subset of cases for

which such authorization is required, as he is challenging the same judgment he

challenged in his initial motion. This authorization is required even when, as here,

a defendant asserts that his motion is based 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 not only

has not obtained authorization from the Eleventh Circuit Court of Appeals to file a

successive motion, but his request for such authorization was denied (doc. 276). 

Therefore, the instant motion to vacate must be dismissed.

CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United

States District Court (“§ 2255 Rules”) 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

Case Nos: 3:96cr61/RV/CJK; 3:12cv293/RV/CJK

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of appeal must still be filed, even if the court issues a certificate of appealability. 

Rule 11(b), § 2255 Rules.

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 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.

Accordingly, it is respectfully RECOMMENDED:

1. Defendant’s amended motion to vacate pursuant to 28 U.S.C. § 2255

(doc. 346) be DISMISSED, as this court lacks jurisdiction to consider a successive

motion absent authorization from the Eleventh Circuit.

2. A certificate of appealability be DENIED.

At Pensacola, Florida, this 30th day of September, 2014.

/s/Charles J. Kahn, Jr. 

CHARLES J. KAHN, JR. 

UNITEDSTATESMAGISTRATEJUDGE

Case Nos: 3:96cr61/RV/CJK; 3:12cv293/RV/CJK

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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: 3:96cr61/RV/CJK; 3:12cv293/RV/CJK

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