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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

v. Case Nos.: 3:99cr50/RV/CJK

3:14cv276/RV/CJK

PAUL E. CLAYTON

_____________________________/

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. 222). 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 was sentenced on December 15, 2000, to a term of 270 months

imprisonment after pleading guilty to conspiracy to possess with intent to distribute

fifty grams or more of crack cocaine (docs. 121, 132). The Eleventh Circuit affirmed

Defendant’s conviction and sentence on appeal in October of 2001 (doc. 159). 

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Defendant then challenged his conviction by means of a motion to vacate pursuant

to 28 U.S.C. § 2255 (doc. 165). This motion was denied in 2004 over Defendant’s

objection (see docs. 179–182). Defendant unsuccessfully moved to reduce his

sentence based on the crack cocaine amendments (docs. 190, 191), and the Eleventh

Circuit affirmed (doc. 206). Defendant has now filed another motion to vacate in

which he seeks relief pursuant to the recent Supreme Court decision in Alleyne v.

United States, 133 S.Ct. 2151 (2013), which he suggests announced a new

substantive rule that is retroactively applicable to his case (doc. 222). 

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). This authorization is required even when, as here, a defendant asserts that his

motion is based on the 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, and therefore, the instant motion

to vacate must be dismissed without prejudice.

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

Case Nos: 3:99cr50/RV/CJK; 3:14cv276/RV/CJK

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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 thisrecommendation 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. 222),

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

successive motion absent authorization from the Eleventh Circuit.

2. A certificate of appealability be DENIED.

At Pensacola, Florida, this 19th day of June, 2014.

/s/Charles J. Kahn, Jr. 

CHARLES J. KAHN, JR. 

UNITEDSTATESMAGISTRATEJUDGE

Case Nos: 3:99cr50/RV/CJK; 3:14cv276/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: 3:99cr50/RV/CJK; 3:14cv276/RV/CJK

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