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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA

vs. Case Nos.: 4:93cr4028/WS/CAS

 4:14cv272/WS/CAS

KEITH LAPELL BIGGINS

_______________________________________/

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 (docs.

1071, 1072). 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 is currently serving a term of life imprisonment after his 1995 conviction

of controlled substance offenses. After an unsuccessful appeal, he filed a motion to vacate

pursuant to 28 U.S.C. § 2255 in June of 2001, which was also denied (docs. 768, 788). 

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He unsuccessfully appealed the denial of the § 2255 motion and filed another § 2255

motion which was summarily denied as successive (docs. 850, 851, 856).1 Defendant’s

motions for a reduction in his sentence pursuant to 18 U.S.C. § 3582, and later pursuant to

the crack cocaine amendments were also denied (docs. 921, 934; 1067, 1069). 

Defendant has now filed a third motion to vacate pursuant to 28 U.S.C. § 2255, in which he

contends that he is actually innocent, citing McQuiggin v. Perkins, 133 S.Ct. 1924 (2013).

This court does not have jurisdiction to entertain Defendant’s motion. As Defendant

should be aware, 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.

1 The Eleventh Circuit previously denied Defendant’s application for leave to file a second or successive

§ 2255 motion (doc. 855).

Case Nos.: 4:93cr4028/WS/CAS; 4:14cv272/WS/CAS

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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 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 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 motion to vacate pursuant to 28 U.S.C. § 2255 (doc. 1071), be

SUMMARILY DISMISSED without prejudice, as this court lacks jurisdiction to consider

a successive motion absent authorization from the Eleventh Circuit.

Case Nos.: 4:93cr4028/WS/CAS; 4:14cv272/WS/CAS

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2. A certificate of appealability be DENIED.

At Tallahassee, Florida, this 6th day of June, 2014.

/s/ CHARLES A. STAMPELOS 

CHARLES A. STAMPELOS

UNITED STATES MAGISTRATE JUDGE

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.: 4:93cr4028/WS/CAS; 4:14cv272/WS/CAS

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