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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

vs. Case No.: 3:96cr74/RV 

DARRELL GREEN

_______________________________________/

REPORT AND RECOMMENDATION

This matter is before the court upon referral from the district court (doc. 742). The court noted

that after a review of the file it appeared that Defendant Darrell Green might be abusing the legal

process by filing multiple frivolous motions, and the district judge referred the case to the undersigned

for a report and recommendation regarding whether sanctions are appropriate, and if so, what

sanctions (id.). 

BACKGROUND

On March 3, 2000, Defendant was sentenced to a term of life imprisonment after his conviction

of controlled substance offenses (docs. 357, 359). His conviction and sentence were affirmed on

appeal in November of 2001 (doc. 427), and he then challenged his conviction by means of a motion

to vacate pursuant to 28 U.S.C. § 2255 in May of 2003 (doc. 459). This motion was denied (see docs.

528, 540). Defendant filed another motion to vacate in January of 2006, in which he sought relief

pursuant to the Supreme Court’s decisions in Blakely v. Washington, 542 U.S. 296 (2004) and United

States v. Booker, 543 U.S. 220 (2005) (doc. 593). That motion was summarily dismissed as

successive (see docs. 594, 596). Defendant filed a third motion to vacate in June of 2012, seeking

relief based on the Supreme Court’s decision in DePierre v. United States, 131 S. Ct. 2225 (2011),

asserting that the case concerned a new rule of law that was “just made retroactive” (doc. 690 at 6). 

That motion was also summarily dismissed as successive (see docs. 693, 700). In August of 2012,

Defendant filed a fourth motion to vacate in which he claimed he was entitled to immediate release

due to his having deposited an “offset bond” with the Secretary of the Treasury “for the complete
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satisfaction of all judgments, warrants, and liens whether civil or criminal” (doc. 713 at 12). The

fourth § 2255 motion was also summarily dismissed as successive over Defendant’s objection (docs.

714–716). Defendant appealed (doc. 718), but the appeal was dismissed for want of prosecution on

November 2, 2012 (doc. 725). 

In the past two months, Defendant has also filed a “Motion for Exoneration of All Personal

Surety Bonds” (doc. 722), a “Certificate of Deposit and Memorandum of Law” (doc. 738), a “Motion

for Extension of Time to File Motion for Reconsideration in Regards to this Court’s Denial of His

Fed. R. Crim. P. Rule 46(g) Motion [doc. 724]” (doc. 726), a Notice of Appeal (of the order

referenced in doc. 726) (doc. 727), a “[Rule 60(b)] Motion for Reconsideration of Motion for

Exoneration of All Personal Surety Bonds and a Full Discharge of All Personal Securities” (doc.

732), a notice titled “Judicial Notice of Amendment to Petition for Closing Agreement” (doc. 733),

a “Motion for Clarification of Bail/Bond/Probation and Supervised Release Conditions (doc. 734),

a transcript request for a hearing that took place in the Southern District of Florida (doc. 735), a

“Motion for Permission to Appeal in Forma Pauperis” (doc. 736), and a “Motion for Correction of

Judgment Pursuant to Rule 60(b) for Mistake and Error by the Court” (doc. 747). To the extent any

ruling was required, all of the previously-listed motions were denied (docs. 724, 730, 739–741, 748). 

None of the court’s rulings specifically stated that the motions were frivolous, although the court did

note that Defendant’s appeal of the order denying his most recent motion to vacate, set aside or correct

sentence was not taken in good faith (doc. 741). Additionally, the court’s rulings to date have not

warned Defendant of the possibility of sanctions if he persisted in filing successive motions or other

inappropriate submissions. 

DISCUSSION

General Discussion

The Supreme Court has stated: 

“The goal of fairly dispensing justice . . . is compromised when the Court is forced to

devote its limited resources to the processing of repetitious and frivolous requests. Pro

se petitioners have a greater capacity than most to disrupt the fair allocation of judicial

resources because they are not subject to the financial considerations—filing fees and

attorney’s fees—that deter other litigants from filing frivolous petitions.

In re Anderson, 511 U.S. 364, 365 (1994) (quoting In re Sindram, 498 U.S. 177, 179 (1991)). 

“Federal courts have both the inherent power and the constitutional obligation to protect their

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jurisdiction for conduct which impairs their ability to carry out Article III functions.” Procup v.

Strickland, 792 F.2d 1069, 1073 (11th Cir. 1986); see also Shivers v. United States, 427 F. App’x

697, 699 (11th Cir. 2011) (citing Procup); In re Stone, 986 F.2d 898, 902 (5th Cir. 1993) (courts

possess the inherent power “to protect the efficient and orderly administration of justice and . . . to

command respect for the court’s orders, judgments, procedures, and authority.”). District courts have

considerable discretion to impose even severe restrictions on abusive litigants, though the conditions

imposed “must not have the effect of completely foreclosing access to the courts.” Shivers, 427 F.

App’x at 699 (citing Procup, 792 F.2d at 1074). The manner in which this is handled varies greatly,

as will be discussed further herein. 

By and large, courts conclude that sanctions are appropriate after a litigant has been warned

about the possibility of same. See, e.g., Nelson v. Reese, 214 F. App’x 465 (5th Cir. 2007); Perkins

v. United States, No. 99-41421, 2000 WL 959916, at *1 (5th Cir. June 13, 2000); Alexander v. United

States, 121 F.3d 312, 315 (7th Cir. 1997); McDonald v. Summers, No. 3:05-0243, 2011 WL 2437766

(M.D. Tenn. June 13, 2011); Shivers, 427 F. App’x at 697 (imposing restrictions on subsequent in

forma pauperis filings and warning that future frivolous filings could lead to additional sanctions). 

And when litigants persist in filing frivolous submissions, monetary sanctions may be appropriate. 

See, e.g., Alexander, 121 F.3d at 316 (imposing $500 sanction after warning); Nelson, 214 F. App’x

at 467 ($250 sanction after warning); Smith v. Gilmore, 111 F.3d 55, 56 (7th Cir. 1997) ($50 sanction

after warning); McDonald, 2011 WL 2437766, at *4 ($1000 sanction after multiple warnings); Miller

v. Williams, No. CV411-065, 2011 WL 1898921 (S.D. Ga. May 17, 2011) ($500 sanction

recommended in light of litigant’s eight-year “unceasing paper-war against this court,” although no

explicit prior warning mentioned) (report and recommendation adopted, Miller v. Williams, No.

CV411–065, 2011 WL 2181628 (S.D. Ga. June 2, 2011) (adopting without comment magistrate

judge’s recommendation of the $500 sanction)).

In other cases, frequent filers are prohibited from future filings unless they obtain special

dispensation from the court, or their pleadings are filed by a member of the bar, or they satisfy a courtimposed sanction. See, e.g., United States v. Robinson, Civil No. 1:07cv1046, Crim. No.

1:98cr10005, 2007 WL 2409708 (W.D. Ark. Aug. 21, 2007) (clerk of court directed not to file

submissions challenging litigant’s conviction and sentence absent permission from the Eighth Circuit);

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Campbell v. Maye, No. A-10-CA-463-LY, 2010 WL 2671725 (W.D. Tex. June 30, 2010)

(recommending that litigant not be allowed to file any pleadings, motions or suits which assert claims

that must be brought pursuant to § 2255 unless litigant receives permission from a federal judicial

officer to do so);1 Nelson, 214 F. App’x at 467 (defendant sanctioned $250 and all district courts

within the circuit were directed to refuse to file any pro se pleading challenging defendant’s

conviction and sentence until he submitted proof of satisfaction of the sanction).

A blanket prohibition on all future filings raises constitutional concerns regarding access to

the courts, and courts have creatively fashioned sanctions to avoid running afoul of the constitution. 

See Shivers, 427 F. App’x at 699 (noting that the court “would accept any pleading filed by a member

of the bar” on defendant’s behalf); Alexander, 121 F.3d at 315 (filing of a frivolous collateral attack

may justify monetary sanctions, but court cannot refuse to receive all new papers in order to enforce

those sanctions) (citing Smith v. Gilmore, 111 F.3d 55 (7th Cir. 1997)). 

The defendant in Shivers, who was serving a life sentence, unsuccessfully challenged his

conviction pursuant to § 2255, and then filed at least six Rule 60(b) motions, three motions for leave

to file a second or successive § 2255 motion, one petition for writ of habeas corpus pursuant to

§ 2241, and a motion pursuant to Rule 60(d)(3), most of which filings challenged the constitutionality

of a search warrant in his case, which was executed in 1999. Shivers, 427 F. App’x at 698. After

Shivers failed to heed the court’s warning about continuing to file frivolous pleadings, the district

court directed him to show cause why he should not be sanctioned in the form of denial of in forma

pauperis status for all future frivolous motions. Id. at 699. The court determined that Shivers’

“frivolous filings were frustrating its responsibility to allocate its resources in a way that promotes

the interests of justice” and also determined that an appropriate sanction would be to deny in forma

pauperis status for all future collateral attacks that alleged, in any way, a complaint about the affidavits

involved in the 1999 search. Id. It also warned him that future frivolous collateral attacks could

result in an expansion of the sanctions, while indicating that the court would accept any pleading filed

by a member of the bar in his behalf. Id. The appellate court upheld these narrowly-tailored

1

 The district court adopted the recommendation of the magistrate judge in an order issued on August 25,

2010 (see online docket for the Eastern District of Texas, Case No. 1:10cv463-LY (doc. 10)). The Fifth Circuit

affirmed the order of the district court, although it did not discuss that part of the order barring petitioner from filing

any pleadings attacking his conviction and sentence. See Campbell v. Maye, 428 F. App’x 382 (5th Cir. 2011).

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sanctions, noting that the courthouse door remained open for all claims not related to the search and

underlying warrant.2

 Id. at 700.

In Alexander, the Seventh Circuit was confronted with a successive collateral attack by a

prisoner who had already filed three previous motions and had been expressly warned that a failure

to satisfy the standard of the law would bring sanctions. 121 F.3d at 315. It noted that “the usual

means of control, both financial and jurisprudential, do not apply for applications for leave to

commence successive collateral attacks.” Id. The court denied Alexander’s application for collateral

relief, assessed a $500 fine, directed that the Bureau of Prisons be notified of the fine, entered a Mack3

order, and held that any subsequent applications for leave to file successive collateral attacks would

be deemed denied on the thirtieth day unless the court otherwise ordered. Id. at 316. 

In United States v. Robinson, the defendant had filed seven motions to vacate or petitions for

writ of habeas corpus attacking his criminal conviction and sentence. 2007 WL 2409708, at *4. He

had not received permission to file a second or successive motion, and in fact he had been denied such

authorization on multiple occasions. Id. In denying his latest submission, the district court directed

the clerk of court not to accept any future filings related to defendant’s underlying criminal conviction

and sentence unless defendant had successfully obtained leave to file a second or successive motion. 

Id. at *2. In so ruling, the Robinson court noted that it was clear that defendant was aware that the

court lacked jurisdiction to consider successive § 2255 motions absent permission from the appellate

court and, therefore, any such filings without prior authorization were frivolous and an abuse of the

judicial system. Id. This order did not address other kinds of post-conviction motions, however. 

2

 The Eleventh Circuit did not discuss the practical impact these sanctions were likely to have either on the

court or on defendant Shivers. For instance, the determination of Shivers’ entitlement to proceed in forma pauperis

in a subsequent collateral filing would not be a mere ministerial task—it would require review, and potentially analysis,

of the facts of his claims. Also, collateral challenges and post-conviction motions that are part of a defendant’s

criminal case require no filing fee, and even petitions for writs of habeas corpus require only a $5.00 fee. Therefore,

the deterrent value of denying in forma pauperis status seems marginal at best. 

3

 Although the Alexander court did not explain the nature of a Mack order, it is apparently derived from

Support Systems Intern., Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995), which was cited in the Alexander opinion. In Mack,

the court directed that clerks of all federal courts in the circuit return unfiled any papers that the litigant attempted to

file except for papers in criminal proceedings in which he was a defendant, or papers regarding any habeas corpus

application until the sanction against him had been paid. The order was not “perpetual,” but rather the litigant was

directed to submit to the court, no earlier than two years from the date of the order in question, a motion to modify

or rescind the order. Mack, 45 F.3d at 186.

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Because of the restrictions on successive filings, abusive litigants are sometimes creative in

the titling or formatting of their submissions. They may not, however, circumvent the restrictions on

filing successive motions merely by recharacterizing their submissions as filed under different statutes. 

And, there appears to be no time limitation on the restriction for filing frivolous pleadings once an

abusive litigant has been warned. In June of 2000, the Fifth Circuit considered the appeal of the denial

of a § 2241 habeas petition. Perkins, 2000 WL 959916. After Perkins’ request for relief under §

2255 and his request for permission to file a successive § 2255 motion were denied, he brought his

claim pursuant to § 2241, arguing that § 2255 provided an inadequate and ineffective remedy to

challenge his conviction under the “carry” prong of 18 U.S.C. § 924(c). Perkins, 2000 WL 959916,

at *1. Defendant could have, but did not, raise this same claim on direct appeal; he was denied relief

on this claim in his first § 2255 motion; and his request to file a successive § 2255 on this basis was

denied. See United States v. Perkins, 424 F. App’x 328, 329 (5th Cir. 2011) (discussing history of

Perkins’ prior submissions). In denying his request for § 2241 relief, which the court viewed as an

attempt to circumvent the restriction on successive § 2255 motions, the court warned Perkins that “any

further attempts to attack his conviction that do not meet the criteria for filing a successive § 2255

motion will be sanctioned.” Perkins, 2000 WL 959916, at *1.

In May of 2011, nearly eleven years later, the Fifth Circuit was presented with Perkins’ appeal

of the district court’s denial of his writ of error coram nobis in which he again raised the same ground

for relief. Perkins, 424 Fed. App’x at 328. The court noted that although defendant filed his challenge

“nominally under § 1651(a),” rather than as a request to file a successive § 2255 motion, in his request

for a certificate of appealability he argued that his case met the criteria to file a successive § 2255

motion. Id. at 329. Thus it was clearly a challenge to his conviction. The Fifth Circuit found that

Perkins’ appeal of the district court’s denial of the writ was not taken in good faith and was frivolous. 

Id. Although the district court had warned Perkins that future frivolous filings might result in the

imposition of sanctions, the Fifth Circuit relied on the warning given eleven years earlier and imposed

a sanction in the amount of $455.00. Id. It further stated that until the sanction was paid, Perkins was

not permitted to file any more “appeals or initial pleadings challenging the validity of his conviction

and sentence, whether those challenges are governed by § 2241, § 2255, § 1651(a) or any other

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statutory provision, in this court or in any court under this court’s jurisdiction, without first obtaining

the permission of this court or the forum court.” Id.4

Appropriate Sanctions in this case

In light of Defendant’s prolific repetitive and/or frivolous filings, the undersigned would have

no difficulty recommending the imposition of a sanction of some sort if Defendant had previously been

warned about the possibility of the same. Defendant was not previously so warned, although he was

clearly on notice that the court did not have jurisdiction to consider successive § 2255 motions after

the first such motion was rejected (see docs. 594, 596), and notwithstanding this knowledge he

persisted in filing two additional successive motions. Despite this, the undersigned recommends at

this juncture that Defendant merely be admonished with respect to future filings. More specifically,

Defendant should be restricted from filing any pro se pleading or motion that challenges or otherwise

relates in any way to his conviction, sentence, or incarceration in Case No. 3:96cr74/RV, regardless

of the label Defendant may attach to his filing, unless he has been granted authorization to do so. Any

document submitted by Defendant that violates or appears to violate this restriction should not be filed

by the clerk of court but referred to chambers as deficient.5

Defendant should also warned that if he submits a prohibited pleading, motion, or other filing

related to his underlying criminal conviction, the court will likely impose additional sanctions,

including—but not limited to—additional filing restrictions and monetary penalties.6

4

 Imposition of this sanction was apparently little deterrent to defendant Perkins, as he filed another motion

to vacate pursuant to § 2255 in August of 2011. See United States v. Perkins, Case No.: 5:94cr36-7-C-BG, N.D. Tex,

doc. 420. On October 18, 2011, the Fifth Circuit entered an order denying Perkins’ request to proceed without

payment of his sanction noting that the sanction had not served as a deterrent and that Perkins’ “repeated frivolous

filings have become a drain on the scarce resources of this court.” United States v. Perkins, Case No.: 5:94cr36-7-CBG, N.D. Tex., doc. 421 at 1. It further noted that any future submission that did not include proof of satisfaction of

the $455 sanction would be docketed for administrative purposes, but would neither be addressed nor acknowledged. 

Id. at 2. Perkins ultimately satisfied the sanctions in May of 2012. United States v. Perkins, Case No.: 5:94cr36-7-CBG, N.D. Tex., doc. 423.

5

Restrictions related to other types of future filings by Defendant would potentially create an unnecessary

administrative burden that would have a minimal practical deterrent effect because Defendant has thus far limited his

filings to motions in his criminal case. The undersigned thus declines to recommend additional filing restrictions

beyond those related to the criminal case.

6The court has reviewed the account information attached to Defendant’s most recent in forma pauperis

motion and notes that he receives regular deposits into his inmate trust account from both payroll and outside sources

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Conclusion

Although Defendant Green was on notice that successive § 2255 motions will not be

considered by this court absent authorization from the Eleventh Circuit, he was not expressly warned

that the continued filing of such motions (or related filings) would result in the imposition of sanctions. 

Thus, Defendant should be prohibited from submitting such filings in the future and expressly warned

that a violation of the prohibition will result in sanctions.

Accordingly, it is respectfully RECOMMENDED:

1. That Defendant be prohibited from filing any further initial pleadings, motions or

appeals that challenge the validity of, or otherwise relate to, his conviction and sentence in Case No.

3:96cr74/RV, regardless of the label Defendant may attach to his filing.

2. That the clerk be directed to refer to chambers as deficient any pro se pleading that

violates or appears to violate the filing prohibition.

3. That Defendant be expressly warned that submission of a prohibited or frivolous filing

in the future will subject him to additional sanctions.

At Pensacola, Florida, this 19th day of December 2012.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

(doc. 744 at 8–13). The court also notes that during the seven months for which account information was provided,

Defendant had $1377.30 in deposits into his inmate account, or an average of $196.75 per month. Thus, should the

district court determine that an additional sanction is warranted at this juncture, the undersigned would recommend

that an appropriate sanction would be a monetary sanction in the amount of $200.00, or approximately one month’s

deposits (the courts that have imposed sanctions in the cases discussed herein have not explained how they determined

the amount of sanctions to impose). At least one court has imposed a higher sanction with no apparent prior warning. 

See Miller, 2011 WL 1898921.

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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).

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