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Cases No. 4:02cr52-RH/CAS and 4:14cv306-RH/CAS

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

v. CASES NO. 4:02cr52-RH/CAS

 4:14cv306-RH/CAS

ERIC EUGENE BALCOM,

Defendant.

______________________________/

ORDER DENYING THE § 2255 MOTION

The defendant Eric Eugene Balcom pleaded guilty to conspiring to 

distribute, and to possess with intent to distribute, more than 50 grams of crack 

cocaine. Under 21 U.S.C. § 841(b)(1)(A) as in effect at that time, the mandatory 

sentence was life in prison for a defendant convicted of a crack distribution offense 

involving 50 grams or more, if the defendant had “two or more prior convictions 

for a felony drug offense” that had become final. Mr. Balcom had two such 

convictions, both in Florida state court. One was for possessing cocaine. The 

other was for possessing cocaine with the intent to distribute it. So in this federal 

case, Mr. Balcom was sentenced to life in prison. Any other sentence would have 

been contrary to law.

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The Fair Sentencing Act raised the amount of crack that, in combination 

with two or more convictions of felony drug offenses, triggers a mandatory life 

sentence. The amount is now 280 grams, not 50 grams. But the Fair Sentencing 

Act is not retroactively applicable on collateral review. Mr. Balcom’s earlier 

motion for a sentence reduction under the Fair Sentencing Act was properly 

denied.

Mr. Balcom now has filed a motion for relief under 28 U.S.C. § 2255 on the 

ground that, under new decisions including Descamps v. United States, 133 S. Ct. 

2276 (2013), and Donawa v. U.S. Att’y Gen., 735 F.3d 1275 (11th Cir. 2013), his 

two Florida convictions did not properly trigger the mandatory life sentence. That 

is wrong on the merits. Donawa held that Florida drug convictions did not count 

as drug trafficking offenses under 8 U.S.C. § 1101(a)(43)(B), which incorporates 

the definition of a drug trafficking crime from 18 U.S.C. § 924(c). The reason was 

the absence of a mens rea requirement sufficient to make the defendant a 

trafficker. But offenses that trigger a life sentence under 21 U.S.C. 

§ 841(b)(1)(A)—the statute under which Mr. Balcom was convicted—are not 

limited to drug trafficking offenses. To the contrary, § 841(b)(1)(A) applies based 

on any “drug felony offense.” Nothing in Donawa suggests Florida convictions for 

possessing or possessing with intent to distribute cocaine are not drug felony 

offenses. Mr. Balcom’s convictions were felonies—he does not, and could not 

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reasonably, assert the contrary—and they required possession of cocaine as an 

element of the offense. These were, in short, drug felony offenses. Cf. United 

States v. Burton, No. 13-13340, 2014 WL 1800822 (11th Cir. May 7, 2014) 

(unpublished) (holding, on plain-error review, that a Florida drug conviction was a 

“controlled substance offense” within the meaning of the federal sentencing 

guidelines, notwithstanding Donawa’s conclusion that such a conviction was not a 

drug trafficking offense).

So Mr. Balcom is wrong on the merits. And his § 2255 motion also fails on 

procedural grounds. The motion is before the court on the magistrate judge’s 

report and recommendation, ECF No. 156, and the objections, ECF No. 158. As 

explained in the report and recommendation, this is not Mr. Balcom’s first § 2255 

motion. Under 28 U.S.C. § 2244(b)(3), a district court cannot entertain a second or 

successive § 2255 motion unless the court of appeals has authorized the defendant 

to file the motion. The Eleventh Circuit has not authorized Mr. Balcom to file this 

motion. The § 2255 motion thus must be denied for lack of jurisdiction. And the 

motion would be denied on the merits, even if it was properly filed. 

A defendant may appeal the denial of a § 2255 motion only if the district 

court or court of appeals issues a certificate of appealability. Under 28 U.S.C. 

§ 2253(c)(2), a certificate of appealability may issue “only if the applicant has

made a substantial showing of the denial of a constitutional right.” Miller-El v. 

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Cockrell, 537 U.S. 322, 335-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84 

(2000); Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983); see also Williams v. 

Taylor, 529 U.S. 362, 402-13 (2000) (setting out the standards applicable to a 

§ 2254 petition on the merits). As the Court said in Slack:

To obtain a COA under § 2253(c), a habeas prisoner must make a 

substantial showing of the denial of a constitutional right, a 

demonstration that, under Barefoot, includes showing that reasonable 

jurists could debate whether (or, for that matter, agree that) the 

petition should have been resolved in a different manner or that the 

issues presented were “adequate to deserve encouragement to proceed 

further.” 

Slack, 529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at 893 n.4). Further, in 

order to obtain a certificate of appealability when dismissal is based on procedural 

grounds, a petitioner must show, “at least, that jurists of reason would find it 

debatable whether the petition states a valid claim of the denial of a constitutional 

right and that jurists of reason would find it debatable whether the district court 

was correct in its procedural ruling.” Slack, 529 U.S. at 484. 

The defendant has not made the required showing. This order thus denies a 

certificate of appealability. 

For these reasons,

IT IS ORDERED:

1. The clerk must enter a judgment stating, “The defendant’s motion for 

relief under 28 U.S.C. § 2255 is DENIED.”

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2. The defendant’s application for a certificate of appealability is DENIED.

SO ORDERED on July 14, 2014.

s/Robert L. Hinkle

United States District Judge

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