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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

4:90cr4051-WS

vs. 4:06cv16-WS/WCS

JAMES DENSON,

Defendant.

 /

REPORT AND RECOMMENDATION TO DISMISS §2255 MOTION

Defendant Denson filed a 28 U.S.C. § 2255 motion and supporting memorandum

of law (hereafter § 2255 memo). Doc. 594. Defendant challenges his 1991 sentence to

660 months for conspiracy to possess with intent to distribute cocaine and cocaine

base, and possession with intent to distribute cocaine and cocaine base. The judgment

was affirmed per curiam on July 3, 1993. Doc. 395 (a copy is attached to doc. 594 as

Ex. D). 

Defendant argues that he was denied his constitutional rights at sentencing in

light of United States v. Booker, 543 U.S. 200, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). 

Doc. 594, p. 4. He argues that there was no jury finding of drug type or quantity, and

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1

 In Apprendi, the Court confirmed the opinion expressed in Jones, that "[o]ther

than the fact of a prior conviction, any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt." 530 U.S. at 490, 120 S.Ct. at 2362-63. Under Ring, a defendant is

entitled to a jury determination of aggravating factors necessary for imposition of the

death penalty. In Blakely, the Court applied Apprendi to a state sentencing guidelines

sentence, and explained the term "statutory maximum." Booker extended the rationale

of Apprendi and Blakely to the Federal Sentencing Guidelines. 

2

 The one year limitations period for filing a § 2255 motion commences from the

latest of the dates set forth in § 2255 ¶ 6; "[i]n most cases, the operative date . . . will be

the one identified in ¶ 6(1): 'the date on which the judgment of conviction becomes

final.'" Dodd, 125 S.Ct. at 2481 (quoting § 2255, other citation omitted). Since

Defendant's conviction was final long before April 24, 1996 (when the limitations period

became effective), unless a later commencement date applies under ¶ 6(2), (3), or (4),

he had a one year grace period from that date to file a § 2255 motion. Goodman v.

United States, 151 F.3d 1335, 1337 (11th Cir. 1998). 

Case Nos. 4:90cr4051-WS and 4:06cv16-WS/WCS

other enhancements were made to his sentence based on judicial factfinding, under the

United States Sentencing Guidelines. § 2255 memo, p. 2-3, 13-14, 18-20. He relies

on, inter alia, Booker, Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 2537, 159

L.Ed.2d 403 (2004), Ring v. Arizona, 536 U.S. 584, 589, 122 S.Ct. 2428, 2432, 153

L.Ed.2d 556 (2002), Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348,147 L.Ed.2d

435 (2000), and Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311

(1999).1 Id. 

Defendant concedes that conviction became final on September 3, 1993, for

purposes of commencing the one year time limit for filing a motion under § 2255 ¶ 6(1). 

§ 2255 memo, p. 1. He claims, however, that his claim is timely under § 2255 ¶ 6(3)

and Dodd v. United States, 545 U.S. , 125 S.Ct. 2478, 160 L.Ed.2d 621 (2005). Id.,

pp. 1, 6.2 

Dodd addressed the time limit for filing a § 2255 motion under § 2255 ¶ 6(3). 

Completely aside from the timeliness issue, Defendant Denson previously filed a 28

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3

 The notice of appeal was filed by the clerk on April 14, 1999, doc. 527, but not

transmitted to the court of appeals until this court's order docketed on February 23,

2001. See docs. 527, 547, 548. 

Case Nos. 4:90cr4051-WS and 4:06cv16-WS/WCS

U.S.C. § 2255 motion, and relief was denied with prejudice. Docs. 523 and 525 (report

and recommendation as adopted). See also Doc. 594, p. 2 (acknowledging prior

proceeding). This court denied a certificate of appealability and leave to appeal in

forma pauperis, and the Eleventh Circuit ultimately dismissed for failure to prosecute by

paying the filing fee. Doc. 558.3 

Given the prior § 2255 proceedings, Defendant must obtain authorization from

the Eleventh Circuit before filing a second or successive § 2255 motion. § 2255

(referencing § 2244); § 2255 Rule 9 ("[b]efore presenting a second or successive

motion, the moving party must obtain an order from the appropriate court of appeals

authorizing the district court to consider the motion, as required by 28 U.S.C. § 2255,

para. 8."). See Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003) (without

authorization from the court of appeals, district court lacks jurisdiction to consider a

second or successive § 2255 motion) (citations omitted). 

Defendant's previous attempts to obtain relief under Apprendi, after his § 2255

motion had been denied, were rejected as attempts to file a second or successive

motion without authorization from the court of appeals. Docs. 546, 562

recommendation as adopted, denying motion to dismiss indictment), 561 (order denying

motion to modify term of imprisonment). The current § 2255 form motion must also be

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4

 Indeed, the Court there noted that the time limit applies to all motions, initial as

well as second or successive ones, and § 2255 ¶ 8(2) "narrowly restricts an applicant's

ability to file a second or successive motions." 125 S.Ct. at 2482-83. "[B]ecause of the

interplay between ¶ ¶ 8(2) and 6(3), an applicant who files a second or successive

motion seeking to take advantage of a new rule of constitutional law will be time barred

except in the rare case in which this Court announces a new rule of constitutional law

and makes it retroactive within one year." Id., at 2483. 

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rejected as authorization has not been granted for filing. Dodd does not change this

result.4

Finally, Defendant is advised that authorization for filing such claims by second

or successive motion has been denied in this circuit. In re Anderson, 396 F.3d 1336,

1339-40 (11th Cir. 2005) (denying application to file second or successive motion under

Blakely and Booker); In re Dean, 375 F.3d 1287, 1290-91 (11th Cir. 2004) (denying

leave to file second or successive motion under Blakely); In re Joshua, 224 F.3d 1281,

1283 (11th Cir. 2000) (denying leave to file second or successive motion under

Apprendi). Even in the context of an initial § 2255 motion, the rule Defendant asserts

here does not apply retroactively on collateral review. See Varela v. United States, 400

F.3d 864, 867 (11th Cir.), cert. denied, U.S. , 126 S.Ct. 312 (2005) (Blakely and

Booker do not apply retroactively); McCoy v. United States, 266 F.3d 1245, 1256-58

(11th Cir. 2001) (Apprendi does not apply retroactively). 

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Case Nos. 4:90cr4051-WS and 4:06cv16-WS/WCS

It is, therefore, respectfully RECOMMENDED that the § 2255 motion filed by

Defendant James Denson, doc. 594, be SUMMARILY DISMISSED as authorization for

filing a second or successive motion has not been granted by the court of appeals. 

IN CHAMBERS at Tallahassee, Florida, on April 19, 2006.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10 days after

being served with a copy thereof. Failure to file specific objections limits the scope of

review of proposed factual findings and recommendations.

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