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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

3:98cv59/RV/CJK

BENNIE CLEVELAND WILLIAMS

________________________________/

REPORT AND RECOMMENDATION

This matter is before the court upon Defendant’s Motion toReopen and Amend

Original § 2255 Motion (doc. 462). The Government has responded and moved to

dismiss his motion (doc. 466) and Defendant has responded (doc. 468). The case was

referred to the undersigned for the issuance of all preliminary orders and any

recommendations to the district court regarding dispositive matters. See N.D. Fla.

Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b). After a careful

review of the record and the arguments presented, it isthe opinion of the undersigned

that Defendant’s motion should be denied.

PROCEDURAL BACKGROUND

Defendant was convicted of controlled substance offenses in 1995 and

sentenced to a term of life imprisonment (doc. 124). His judgment and conviction

were affirmed on appeal in 1997 (doc. 197). In 1998, Defendant filed a motion to

vacate pursuant to 28 U.S.C. § 2255 (doc. 199). The motion was denied, as was his
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request for a certificate of appealability (docs. 221, 222, 228, 238). Defendant filed

numerous other motions attempting to either reverse the judgment of conviction or

reduce his sentence (see docs. 263, 308, 310, 319, 329, 360, 361). His sentence was

reduced from life to 360 months based on the application of the U.S.S.G. crack

cocaine amendment (doc. 365). He now seeks to “re-open” his § 2255 motion in light

of the Supreme Court’s decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012), in an

apparent attempt to relitigate the claims that were raised therein.

The Government moves to dismiss Defendant’s attempt to re-open,

characterizing it as an attempt to avoid the statutory bar on second or successive

motions (doc. 466). To the extent Defendant’s motion can be viewed as a second or

successive motion, the court is without jurisdiction to consider it as he has not

obtained leave from the Eleventh Circuit to file such a motion. See 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).

In his response, however, Defendant argues that he filed his motion pursuant

to Fed. R. Civ. P. 60(b) seeking relief from an “allegedly incorrect procedural ruling”

(doc. 468 at 5). The court has reviewed the record and notes that each of the claims

in Defendant’s initial § 2255 motion was addressed on its merits, even if a procedural

bar also was noted (doc. 221). Although Defendant wasrepresented by counsel in the

initial § 2255 proceedings, his reliance on Martinez as authority for re-opening his

motion is misplaced. Martinez addressed the issue of procedural default based on

ineffective assistance of counsel in a state habeas proceeding. Martinez, 132 S.Ct.

at 1319. As such, it has been found inapplicable to claims challenging federal

convictions. See, e.g., Jackman v. Shartle, No.13-2500; 2013 WL 4419333 at *2 n.5

Case Nos.: 3:94cr3136/RV/CJK; 3:98cv59/RV/CJK
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(3d Cir. 2013); Buenrostro v. United States, 697 F.3d 1137, 1140 (9th Cir. 2012). 

Furthermore, Martinez does not confer a constitutional right to effective assistance

of post-conviction counsel. See In Re Sepulvado, 707 F.3d 550, 556 (5th Cir. 2013). 

Therefore, neither Rule 60(b) nor Martinez provides a basis for Defendant to re-open

and re-litigate issues that were decided thirteen years ago. Defendant’s motion to reopen should be denied. 

 Certificate of Appealability

Section 2255 Rule 11(a) 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. § 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,

to the extent one is required in this case.

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.: 3:94cr3136/RV/CJK; 3:98cv59/RV/CJK
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Based on the foregoing, it is respectfully RECOMMENDED:

1. Defendant’s “Motion to Re-open § 2255 with an Affirmative Order in light

of Martinez v. Ryan, which extended the Sixth Amendment Right to Effective

Counsel” (doc. 462) be DENIED.

2. The Government’s “Motion to Dismiss Defendant’s Motion toReopen Title

28 United States Code, section 2255 Case” (doc. 466) be GRANTED.

3. A certificate of appealability be DENIED.

At Pensacola, Florida, this 6th day of September, 2013.

/s/Charles J. Kahn, Jr. 

CHARLES J. KAHN, JR.

UNITEDSTATES MAGISTRATEJUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be

filed within fourteen 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, and does not control. 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.: 3:94cr3136/RV/CJK; 3:98cv59/RV/CJK