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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:92cr4013-WS

vs. Case No. 4:05cv345-WS/WCS

MARLIN DAVIS,

Defendant.

 /

REPORT AND RECOMMENDATION TO DENY MOTION TO REOPEN § 2255

Defendant filed a motion to reopen his 28 U.S.C. § 2255 proceeding in light of

Gonzalez v. Crosby, U.S. , 125 S.Ct. 2641, L.Ed.2d (2005) and

Fed.R.Civ.P. 60(b)(6). Doc. 1644. 

Defendant previously sought and was denied relief pursuant to § 2255. Docs.

1439 and 1458 (report and recommendation as adopted), and 1571 (order denying

motions for rehearing and resentencing). A certificate of appealability was denied by

this court and the court of appeals. Docs. 1585 and 1605. Defendant cannot file a

second or successive § 2255 motion absent authorization from the Eleventh Circuit. §

2255 (incorporating requirements of § 2244); § 2255 Rule 9. 

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Case Nos. 4:92cr4013-WS and 4:05cv345-WS/WCS

Defendant seeks review of the previous denial of § 2255 relief in light of

Gonzalez, as well as Glover v. United States, 531 U.S. 198, 121 S.Ct. 696, 148 L.Ed.2d

604 (2001), "in which the trial [court] erred in a Federal Sentencing Guidelines

determination, and as a result of such error, about which counsel failed to argue, the

defendant's sentence was increased." Id., p. 1. Defendant asserts ineffective

assistance of counsel at sentencing, in failing to request a special verdict form, and in

failing to seek sentencing based on marijuana rather than cocaine base. Id., pp. 1-8. 

Defendant asks the court to "examine [his] endeavor of [meeting] both of the prongs

under Strickland v. Washington 466 U.S. 668 (1984) and Glover v. United States,

121 S.Ct. 696 (2001)." Id., p. 8. 

In Glover, the Court rejected the additional requirement, imposed by the Seventh

Circuit, that a sentence increase due to purported attorney error must meet a certain

significance to be prejudicial under Strickland. 531 U.S. at 203, 121 S.Ct. at 700

(noting that, "[q]uite to the contrary, our jurisprudence suggests that any amount of

actual jail time has Sixth Amendment significance.") (citations omitted). Glover was

decided January 9, 2001, one day after the undersigned's report and recommendation

was entered on the docket, but over a month before it was adopted by the district judge,

and well over a year and a half before the motions for rehearing and resentencing were

denied. Docs. 1439, 1458, and 1571. It does not appear that this court imposed the

additional requirement rejected in Glover. See, e.g., doc. 1439, pp. 9-15 (addressing

claims of ineffective assistance of counsel at sentencing). 

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1

 The Eleventh Circuit's opinion had addressed claims brought by two § 2254

petitioners (Gonzalez and Mobley) and one § 2255 movant (Lazo), and noted no

material difference between § § 2254 and 2255 for purposes of Rule 60. Gonzalez v.

Secretary for Dept. Of Corrections, 366 F.3d 1253, 1262 (11th Cir. 2004) ("[w]hat we

say in this opinion about certificates of appealability and Rule 60(b) motions as they

relate to § 2254 proceedings applies equally to § 2255 proceedings, and vice versa."). 

Certiorari was only granted as to Gonzalez; certiorari was denied without opinion as

Mobley (125 S.Ct. 965 (2005)), and Lazo did not seek certiorari. The Supreme Court

expressly limited its Gonzalez opinion to the application of Rule 60 in habeas

proceedings under 28 U.S.C. § 2254. 125 S.Ct. at 2646, n. 3. The Eleventh Circuit has

found Gonzalez equally applicable to § 2255 motions. See United States v. Terrell,

2005 WL 1672122, *2 (11th Cir. Jul.19, 2005) (unpublished). 

Case Nos. 4:92cr4013-WS and 4:05cv345-WS/WCS

In Gonzalez, the Court explained the difference between a true Rule 60(b)

motion and an unauthorized second or successive habeas corpus petition.1 A Rule

60(b) motion containing one or more "claims" for relief, i.e., "an asserted federal basis

for relief from a . . . judgment of conviction," is essentially a successive motion. 125

S.Ct. at 2647 (citations omitted). By contrast, a "claim" is not present in a true Rule

60(b) motion, which instead "attacks, not the substance of the federal court's resolution

of a claim on the merits, but some defect in the integrity of the federal habeas

proceedings," and should not be treated as a successive filing. Id., at 2648 (footnote

omitted). 

In his current motion, Defendant Davis has clearly raised "claims" for relief from

his conviction and sentence, rather than asserting some defect in the prior proceedings. 

He challenges the prior resolution of his § 2255 motion based on a purported change in

substantive law under Glover. Even assuming Glover could help his case or that it was

not available before the § 2255 motion was denied or appealed, Defendant may not use

Rule 60(b) in this fashion to circumvent the limitations on successive motions. 125

S.Ct. at 2647-2648. See also Taylor v. Gilkey, 314 F.3d 832, 835-836 (7th Cir. 2002)

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Case Nos. 4:92cr4013-WS and 4:05cv345-WS/WCS

(new claims based on Glover did not give defendant a new claim, and Glover does not

satisfy standards for second or successive motion). 

It is therefore respectfully RECOMMENDED that Defendant's motion to reopen §

2255 motion pursuant to Rule 60(b)(6) (doc. 1644) be SUMMARILY DISMISSED as an

unauthorized second or successive § 2255 motion. 

IN CHAMBERS at Tallahassee, Florida, on September 20, 2005.

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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