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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

v. Case Nos.: 3:94cr3136/RV/CJK

 3:14cv242/RV/CJK

BENNIE CLEVELAND WILLIAMS

_______________________________/

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. 501). 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 is currently serving a term of 360 months imprisonment after his

conviction for conspiracy to possess with intent to distribute cocaine and cocaine base

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(docs. 124, 365). The Eleventh Circuit affirmed his conviction and sentence on 1

appeal (doc. 174). Defendant then challenged his conviction by means of a motion

to vacate pursuant to 28 U.S.C. § 2255 (doc. 199). The district court denied this

motion in February of 2000 (see docs. 221, 222). Defendant filed several other

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motions for post-conviction relief (see docs 308, 310, 319, 329, 360, 361, 443),

including an unsuccessful motion to re-open his original §2255 motion (doc. 462,

469, 470). Defendant has now filed another motion to vacate in which he claims that

his original trial and appellate attorneys were constitutionally ineffective (doc. 501). 

The filing reveals no explanation for Defendant’s attempt to obtain relief for errors

that occurred nearly twenty years ago, and the only attachment to his motion, an

unredacted copy of the indictment dated September 26, 1994, sheds no light on the

issue (doc. 501 at 7–8). 

In any event, 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 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); United States v. Oliveros-Estupinan, 544 F. App’x 930

(11th Cir. 2014). Defendant has not obtained authorization fromthe Eleventh Circuit

Court of Appeals to file a successive motion, and therefore, the instant motion to

vacate must be dismissed without prejudice.

 Defendant’s motion to reduce sentence pursuant to 18 U.S.C. § 3582 was granted, and his 1

sentence was reduced from life imprisonment to a term of 360 months (doc. 365). 

The record does not indicate the disposition of Defendant’s appeal, although the court’s 2

docket reflects that no further appeals were pending as of June 28, 2002.

Case Nos: 3:94cr3146/RV/CJK; 3:14cv242/RV/CJK

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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.

Accordingly, it is respectfully RECOMMENDED:

1. Defendant’s motion to vacate pursuant to 28 U.S.C. § 2255 (doc. 501),

be SUMMARILY DISMISSED, as this court lacks jurisdiction to consider a

successive motion absent authorization from the Eleventh Circuit.

Case Nos: 3:94cr3146/RV/CJK; 3:14cv242/RV/CJK

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2. A certificate of appealability be DENIED.

At Pensacola, Florida, this 28th day of May, 2014.

/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: 3:94cr3146/RV/CJK; 3:14cv242/RV/CJK

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