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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

v. Case Nos. 3:96cr80/LAC/CJK

 3:13cv452/LAC/CJK

STEVEN ANTHONY GRAHAM

______________________________/

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 and supporting memorandumoflaw

(docs. 281). Rule 4(b) of the Rules Governing Section 2255 Proceedings for the

United States District Courts 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 420 months imprisonment after his

conviction of conspiracy to distribute controlled substance offenses (doc. 30). His

conviction and sentence were affirmed on appeal (doc. 60). Defendant then
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challenged his conviction by means of a motion to vacate pursuant to 28 U.S.C. §

2255 that wassubsequently amended (docs. 64, 68). This motion was denied in 2003

(see docs. 82–84). Defendant appealed, and a certificate of appealability was denied

(doc. 101). Defendant’s “Motion to Re-open the Denial of his § 2255” (doc. 103)

was denied (doc. 104), as were his “Motion to Modify and/or Vacate District Court

Orders” (docs. 202, 203), his “Motion to Set Aside 28 U.S.C. § 2255 Judgment

Obtained as the Result of Fraud on the Court” (docs. 248, 249), two Rule 60(b)

motions (docs. 220, 221, 236, 237), and his motion for reconsideration thereof (docs.

250, 251). He unsuccessfully appealed the denial of most of these motions. 

Defendant has now filed another motion to vacate in which he raises claims of

ineffective assistance of counsel dating back to his original trial. He claims that his

motion was timely filed because the statute of limitations was tolled during the

pendency of the multiple other proceedings identified above, and he claims that his

motion is not successive because the claims raised therein could not have been raised

previously (doc. 281 at 12, 14–15). 

Regardless of whether Defendant’s claims could have been raised previously,

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 isrequired, as he is challenging the same judgment he challenged in his

Case Nos.: 3:96cr80/LAC/CJK; 3:13cv452/LAC/CJK
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initial motion. Because Defendant has not obtained authorization from the Eleventh

Circuit Court of Appeals to file a successive motion, 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

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.

Case Nos.: 3:96cr80/LAC/CJK; 3:13cv452/LAC/CJK
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Accordingly, it is respectfully RECOMMENDED:

1. Defendant’s motion to vacate pursuant to 28 U.S.C. § 2255 (doc. 281),

be SUMMARILY 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 13th day of August, 2013.

/s/Charles J. Kahn, Jr. 

CHARLES J. KAHN, JR.

UNITEDSTATESMAGISTRATEJUDGE

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.: 3:96cr80/LAC/CJK; 3:13cv452/LAC/CJK