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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

vs. Case Nos.: 3:94cr3066/RV

3:12cv279/RV/CJK

ELVIS WHITE

_______________________________________/

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. 149). Rule 4(b) of

the Rules Governing Section 2255 Proceedings 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

By a judgment dated August 25, 1994, defendant was sentenced to a term of

420 months imprisonment after his conviction for one count of conspiracy to possess

with intent to distribute cocaine and cocaine base (doc. 62). His conviction and

sentence were affirmed on appeal (doc. 104). On June 8, 1998, he challenged his

conviction by means of a motion to vacate pursuant to 28 U.S.C. § 2255 (doc. 105). 
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His section 2255 motion was found to be barred by the statute of limitations and

dismissed. (Doc. 115). Over a decade later, on June 11, 2012, defendant filed

another section 2255 motion, (doc. 145), and then, an amended motion, (doc. 149),

seeking relief under the Supreme Court’s decision in DePierre v. United States, 131

S. Ct. 2225, 180 L. Ed.2d 114 (2011), which, he asserts, is a new rule of law reducing

the length of his sentence. (Docs. 149, 154).

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

district court, the defendant 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); Carter v. United States, 405 F. App’x

409 (11th Cir. 2010). This authorization is required even when, as here, a defendant

bases his motion on the claimed 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 has not obtained authorization from

the Eleventh Circuit Court of Appeals to file a successive motion. Therefore, the

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instant motion to vacate must be dismissed.

CERTIFICATE OF APPEALABILITY

As amended effective December 1, 2009, § 2255 Rule 11(a) provides that

“[t]he district court must issue or deny a certificate of appealability when it enters a

 Defendant’s reply, (doc. 154), to the government’s response, (doc. 152), seems to allege

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that his 2255 petition is eligible for review by this court under section 2255(f)(3) instead of section

2255(h). Forfuture reference, section 2255(f)(3) is applicable to a defendant’s first 2255 motion and

addresses the appropriate statute of limitations period applicable to that first motion. A second

successive 2255 motion, however, is dealt with under section 2255(h) and requires certification from

the Eleventh Circuit. 

Case Nos. 3:94cr3066/RV; 3:12cv279/RV/CJK
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final order adverse to the applicant,” and if a certificate isissued “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. § 2255 11(b).

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 new 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. 149), be SUMMARILY DISMISSED.

2. A certificate of appealability be DENIED.

At Pensacola, Florida, this 13th day of November 2012.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITEDSTATES MAGISTRATEJUDGE

Case Nos. 3:94cr3066/RV; 3:12cv279/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. 3:94cr3066/RV; 3:12cv279/RV/CJK