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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. 4:05cv411-WS/WCS

MARLIN DAVIS,

Defendant.

 /

REPORT AND RECOMMENDATION TO DENY MOTION TO REOPEN § 2255

Defendant filed another motion to reopen his 28 U.S.C. § 2255 proceeding in

light of Gonzalez v. Crosby, U.S. , 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005) and

Fed.R.Civ.P. 60(b)(6). Doc. 1666. 

On August 17, 2005, Defendant filed a motion to reopen § 2255 proceeding in

light of Gonzalez and Rule 60(b)(6). Doc. 1644. The court found that Defendant could

not use Rule 60(b) to circumvent the limitations on filing a second or successive § 2255

motion. Docs. 1646, 1660, and 1661 (report and recommendation, order, and judgment

entered on the docket on October 2, 2005). Defendant did not appeal, and has not

obtained authorization from the Eleventh Circuit to file a second or successive § 2255

motion. 

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Case Nos. 4:92cr4013-WS and 4:05cv411-WS/WCS

The current motion purports to challenge the report and recommendation on

Defendant's initial § 2255 motion, by challenging the Government's arguments at

sentencing and on appeal as relied upon in denying § 2255 relief. Defendant

challenges the claims previously asserted by the Government as contrary to testimony

in the record, and to telephone records (supplied with the current motion) which were

introduced at trial. Defendant asserts that the Government knew or should have known

its arguments were inaccurate, and the argument was accepted in the § 2255

proceeding as "presumptively accurate." Doc. 1666, pp. 2 and 6, referencing doc.

1439, p. 17. 

On the page of the report and recommendation referenced by Defendant, it was

stated:

The undersigned did not hear the evidence in this case and has not read

all of the transcripts. But the description by the parties of the evidence at

trial is in the appellate briefs and is presumptively accurate. Doc. 1384,

Defendant's initial brief, pp. 4-10; Government's brief, pp. 4-12. 

Doc. 1439, p. 17 (emphasis added). The report and recommendation was adopted,

judgment was entered, and a certificate of appealability was denied by this court and

the Eleventh Circuit. Docs. 1458, 1571, 1573, 1585, 1605. 

Clearly, the court relied on the appellate briefs as filed by both Defendant and the

Government. The Government's arguments made at sentencing or on appeal did not

constitute fraud in the § 2255 proceeding. At best, Defendant is attempting to present

"new" argument (assuming he did not previously quote the same portions of the

transcript) in support of the merits of his § 2255 motion. See Gonzalez, 125 S.Ct. at

2647 (a claim not presented in a prior petition due to excusable neglect, or because it is

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1

 By contrast, because the Rule 60(b) motion filed by Petitioner Gonzalez

challenged only the prior ruling on the statute of limitations, it was not the equivalent of

a second or successive habeas corpus petition. 125 S.Ct. at 2650. Denial of the

motion was nonetheless affirmed, because the changed interpretation of the statute of

limitations did not satisfy the requirement of showing "extraordinary circumstances,"

particularly given the petitioner's lack of diligence. Id. 

Case Nos. 4:92cr4013-WS and 4:05cv411-WS/WCS

based on newly discovered evidence or a change in the substantive law, is in substance

an application for relief or at least similar enough that it must be subject to the same

requirements).1

For reasons previously stated, this attempt to circumvent the limitations on

second or successive motions should be summarily dismissed. Doc. 1646

(incorporated herein by reference). 

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

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

IN CHAMBERS at Tallahassee, Florida, on November 8, 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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