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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

vs. Case No: 3:99cr46/RV

 3:09cv175/RV/MD

WILLIE JAMES GRIFFIN, JR. 

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. 352). The government has

filed a response in which it moves to dismiss the defendant’s motion as successive

(doc. 356) and the defendant has filed a reply. (Doc. 359). 

The defendant initially filed a motion to vacate pursuant to 28 U.S.C. § 2255 on

October 16, 2002. (Doc. 174). The motion was denied (doc. 257 & 263), as was

defendant’s request for a certificate of appealability. (Doc. 275, 297 & 298). The

instant motion was filed nearly five years later, after defendant received a sentence

reduction pursuant to 18 U.S.C. § 3582. (Doc. 334).

A second or successive motion for § 2255 relief must be certified by the court

of appeals upon motion to that court by the applicant. 28 U.S.C. § 2244(b)(3) and §

2255; Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996); In re

Blackshire, 98 F.3d 1293 (11 Cir. 1996). In accordance with § 2244(b)3)(B), a

th

three-judge panel of the court of appeals may authorize the filing of a second or

successive motion only if it determines that the motion contains claims which rely

on either:
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(1) newly discovered evidence that, if proven and viewed in the light of

the evidence as a whole, would be sufficient to establish by clear and

convincing evidence that no reasonable factfinder would have found

the movant guilty of the offense; or

(2) 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); In re Dean, 375 F.3d 1287 (11 Cir. 2004). Defendant’s motion th

must be dismissed, as the record does not reflect that he has either sought or

obtained authorization from the Eleventh Circuit Court of Appeals to file a second

or successive motion. See, In re Joshua, 224 F. 3d 1281, 1283 (11 Cir. 2000); Medina th

v. Singletary, 960 F.Supp. 275 (M.D. Fla 1997).

Defendant asserts that his motion is timely and proper based on the fact that

he was partially resentenced pursuant to 18 U.S.C. § 3582(c)(2). He appears to

contend, therefore, that he does not need authorization to file the second § 2255

motion in this case. Defendant is mistaken. There is no statutory exception for

successive § 2255 motions filed after such a resentencing. In addition, proceedings

under § 3582(c) and § 1B1.10 "do not constitute a full resentencing of the

defendant," U.S.S.G. § 1B1.10(a)(3), or a de novo resentencing. United States v.

Moreno, 421 F.3d 1217, 1220 (11 Cir.2005), cert. denied, 547 U.S. 1050, 126 S.Ct. th

1643, 164 L.Ed.2d 351 (2006); United States v. Bravo, 203 F.3d 778, 781 (11th

Cir.2000); United States v. Cothran, 106 F.3d 1560, 1562 (11 Cir.1997). The Court th

does not re-examine the other sentencing determinations made at the original

sentencing. Cothran, 106 F.3d at 1562-63; Bravo, 203 F.3d at 781. Defendant,

nonetheless would have this court examine aspects of his criminal case that were

not factored into the court’s ruling on his § 3582 motion. Additionally, to the extent

defendant attempts to raise a Booker claim, the Eleventh Circuit has already stated

that "Booker is inapplicable to § 3582(c)(2) motions." Moreno, 421 F.3d at 1220. As

noted by the government, regardless of whether defendant can demonstrate

Case No: 3:99cr46/RV; 3:09cv175/RV/MD
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grounds for receiving leave to file a second motion, the fact remains that he has not

sought or obtained such leave, and as such this court may not consider his claims.

Based on the foregoing, it is respectfully RECOMMENDED:

The motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. §

2255 (doc. 352) be DISMISSED without prejudice as successive. 

At Pensacola, Florida, this 27 day of July, 2009. th

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within ten

days after being served a copy thereof. A copy of objections shall be served upon the

magistrate judge and all other parties. Failure to object may limit the scope of appellate

review of factual findings. See 28 U.S.C. § 636; Local Rule 27(B); United States v. Roberts,

858 F.2d 698, 701 (11 Cir. 1988). th

Case No: 3:99cr46/RV; 3:09cv175/RV/MD