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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: 3:99cr3/RV

3:05cv164/RV/MD

JEFFERY SCOTT DURHAM

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 memorandum of

law (doc. 136). This motion is not in the proper form as required by the Local Rules,

in that defendant has not properly completed the form and has exceeded the page

limit without leave of court. However, requiring amendment would be futile, as the

motion is subject to summary dismissal. Rule 4(b) of the Rules Governing Section

2255 Proceedings provides in part that “[i]f it plainly appears from the face of the

motion and any annexed exhibits and the prior proceedings in the case that the

movant is not entitled to relief in the district court, the judge shall make an order for

its summary dismissal and cause the movant to be notified.” After a review of the

record, it is the apparent that the motion is an attempt to relitigate issues that were

or could have been raised on direct appeal and that it should be summarily

dismissed.

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Case No: 3:99CR3/RV; 3:05CV164/RV/MD

I. BACKGROUND

Defendant was convicted after a jury trial of several counts of armed bank

robbery, possession of a firearm during and in relation to a crime of violence and

possession of a firearm by a convicted felon. He was sentenced to a term of 1,047

months imprisonment. His conviction was affirmed on appeal on August 20, 2003

and a petition for a writ of certiorari was denied on May 17, 2004. In the instant

motion, defendant raises three grounds for relief: (1) the district court denied him

his right to a fair and impartial jury due to its failure to inquire about pretrial

publicity; (2) the district court deprived him of a fair trail and meaningful right of selfrepresentation; and (3) his fifth and sixth amendment rights were violated by the

combination of security arrangements used at his trial. 

II. LEGAL ANALYSIS

The law is well established that a district court need not reconsider issues

raised in a section 2255 motion which have been resolved on direct appeal. United

States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000); Mills v. United States, 36 F.3d

1052, 1056 (11th Cir. 1994), cert. denied, 514 U.S. 1112, 115 S.Ct. 1966, 131 L.Ed.2d

856 (1995); United States v. Rowan, 663 F.2d 1034, 1035 (11th Cir. 1981). Once a

matter has been decided adversely to a defendant on direct appeal, it cannot be relitigated in a collateral attack under section 2255. Nyhuis, 211 F.3d at 1343

(quotation omitted). Broad discretion is afforded to a court's determination of

whether a particular claim has been previously raised. Sanders v. United States, 373

U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963) (“identical grounds may often be proved

by different factual allegations . . . or supported by different legal arguments . . . or

couched in different language . . . or vary in immaterial respects”). Furthermore, a

motion to vacate under section 2255 is not a substitute for direct appeal, and issues

which could have been raised on direct appeal are generally not actionable in a

section 2255 motion and will be considered procedurally barred. Lynn v. United

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1

Defendant raised one additional issue on appeal that was not raised here.

Case No: 3:99CR3/RV; 3:05CV164/RV/MD

States, 365 F.3d 1225, 1234-35 (11th Cir. 2004); Bousley v. United States, 523 U.S. 614,

118 S.Ct. 1604, 1610, 140 L.Ed.2d 828 (1998); Mills v. United States, 36 F.3d 1052,

1055 (11th Cir. 1994) (recognizing that a ground is “available” on direct appeal when

“its merits can be reviewed without further factual development”); United States v.

Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Each of the issues

raised by the defendant in this motion1 were raised and rejected on appeal. As noted

by the defendant inhis memorandum, the entirety of the appellate court’s discussion

of the issues was as follows:

After a thorough review of the record and upon consideration of the

parties’ briefs, we find that the district court did not abuse its discretion

during jury selection, properly denied Durham’s motions to continue

and to suppress, and did not abuse its discretion in implementing

security measures at trial.

(Doc. 136, appendix A at p. 2-3). The fact that defendant may have preferred a

lengthier written presentation of the court’s analysis is not tantamount to an

entitlement to relitigate the same issues and arguments before this court under the

guise of collateral review.

Based on the foregoing, it is respectfully RECOMMENDED:

The motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. §

2255 (doc. 136) be summarily DISMISSED. 

At Pensacola, Florida, this 11

th day of May, 2005.

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

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NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within ten

days after being served a copy thereof. A copy of objections shall be served upon the

magistrate judge and all other parties. Failure to object may limit the scope of appellate

review of factual findings. See 28 U.S.C. § 636; Local Rule 27(B); United States v. Roberts,

858 F.2d 698, 701 (11th Cir. 1988).

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