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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

CASE NO. 4:94cr4021-WS

vs. CASE NO. 4:05cv277-WS/WCS

ARTHUR JEROME MARTIN,

Defendant.

 /

REPORT AND RECOMMENDATION ON PETITION FOR MODIFICATION OR 

CORRECTION OF SENTENCE

Defendant Martin filed a "Petition for Modification or Correction of Sentence," and

"Petition in Support of Petition . . . Solely to Demonstrate the Retroactivity of United

States v. Booker, 160 L.Ed.2d 621 (2005) and Retrospective Application of In Re

Winship, 397 US 358 (1970)." Docs. 349 and 350. Defendant also filed a "Petition

Addressing the Non-Application of the Remedial Decision to Final Convictions." Doc.

351. 

Defendant asserts that his sentence, based on the court's finding of drug quantity

and role in the offense by a preponderance of evidence, violates the principles of United

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

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1

 It was noted in hindsight that recharacterization of Defendant's motion as a §

2255 motion may have been in error. Doc. 341, p. 2, citing Castro v. United States, 277

F.3d 1300 (11th Cir. 2002). That Castro opinion was later vacated and superceded, but

the superceding opinion was vacated by the Supreme Court. Castro v. United States,

540 U.S. 375, 382-383, 124 S.Ct. 786, 792, 157 L.Ed.2d 778 (2003). In any event,

"[t]he Castro decision does not extend beyond initial filings, and nothing the Supreme

Court said or did in that case implies that the § 2244(b) restrictions can be evaded by

the simple expedient of labeling second or successive filings to be something they are

not." Gonzalez v. Secretary for Dept. Of Corrections, 366 F.3d 1253, 1277, n. 10 (11th

Cir. 2004), affirmed, Gonzalez v. Crosby, S.Ct. , 2005 WL 1469516 (June 23,

2005). 

Case Nos. 4:94cr4021-WS and 4:05cv277-WS/WCS

Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), Ring v. Arizona,

536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Apprendi v. New Jersey, 530

U.S. 466, 476, 490, 120 S.Ct. 2348, 2355, 2362-63, 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). Doc. 349, pp.

8-10 (other citations omitted). 

Defendant was previously denied relief pursuant to 28 U.S.C. § 2255. Docs. 315

and 316 (denying with prejudice Defendant's § 2255 motion, amended § 2255 motion,

and § 3582 motion, docs. 274, 306, and 308). A certificate of appealability was denied. 

Doc. 322. 

Defendant then filed a pleading titled "Nunc Pro Tunc . . . Decree for a Specific

Performance . . . As to the Correction for a Violation of Fed.R.Crim.P. 12(b)(2)." Doc.

330. Though not cited by Defendant, the court found his claim was based on Apprendi,

and construed the motion as an unauthorized second or successive § 2255 motion. 

Docs. 331 and 332. This court denied a certificate of appealability but granted leave to

proceed in forma pauperis. Doc. 341.1 The Eleventh Circuit found that the "nunc pro

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2

 It is noted that, under the "savings clause" of § 2255, a prisoner otherwise

entitled to proceed under § 2255 may seek relief by habeas corpus if the § 2255 remedy

is inadequate or ineffective. Defendant Martin cannot make this showing, however, as

he cannot show that his claim is based on a retroactively applicable Supreme Court

Case Nos. 4:94cr4021-WS and 4:05cv277-WS/WCS

tunc" motion was correctly construed as a successive § 2255 motion, and denied a

certificate of appealability. Doc. 347. 

In an apparent attempt to avoid another dismissal under the successive motion

provisions of § 2255, Defendant now asserts that the court has authority to grant relief

under 18 U.S.C. § 3582(c)(1)(B), providing that "the court may modify an imposed term

of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of

the Federal Rules of Criminal Procedure." Doc. 349, pp. 1, 6, 11 and 12. He asserts

jurisdiction pursuant to Article III, § 2 of the Constitution, and 28 U.S.C. § § 1331 and

1343(a)(2)-(4). Id., pp. 1-2, 4-6, and 11. Defendant asserts that the court has authority

to invoke equitable tolling under Fed.R.Crim.P. 35. Id., pp. 6-7, 11-12. 

Defendant is "in custody" under a federal sentence, "claiming the right to be

released upon the ground that the sentence was imposed in violation of the Constitution

or laws of the United States, or that the court was without jurisdiction to impose such

sentence, or that the sentence was in excess of the maximum authorized by law, or is

otherwise subject to collateral attack," and therefore "may move the court which

imposed the sentence to vacate, set aside or correct the sentence." § 2255. His claim

for relief under Booker and other cases falls under the plain language of § 2255. 

Defendant's citations to the Constitution, and to various statutes, do not change the

nature of his request for relief. He is entitled to post conviction relief, if at all, under §

2255.2

 

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opinion, or that it establishes that he was convicted for a nonexistent offense. Wofford

v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999) (establishing a three part test); Sawyer v.

Holder, 326 F.3d 1363, 1365-66 (11th Cir. 2003) (applying Wofford, noting that to satisfy

the second part of the test defendant had to show that he was convicted for conduct

that did not constitute a crime). 

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Defendant must obtain authorization from the Eleventh Circuit before filing a

second or successive motion raising a Booker claim. § 2255 (requiring that "[a] second

or successive motion must be certified as provided in section 2244" to contain newly

discovered evidence, or "a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously unavailable."). 

Authorization for filing such a claim has been denied in this circuit. In re Anderson, 396

F.3d 1336, at 1339 (11th Cir. 2005) (denying leave to file successive motion as the

Supreme Court has not made Booker or Blakely retroactive on collateral review). See

also Varela v. United States, 400 F.3d 864, 867 (11th Cir. 2005) (Blakely and Booker do

not apply retroactively on collateral review even when raised in initial § 2255 motion);

McCoy v. United States, 266 F.3d 1245, 1256-58 (11th Cir. 2001) (Apprendi announced

a new rule which did not apply retroactively on collateral review). 

It is therefore respectfully RECOMMENDED that Defendant Martin's "Petition for

Modification or Correction of Sentence" and related petitions (docs. 349-351) be

SUMMARILY DENIED. 

IN CHAMBERS at Tallahassee, Florida, on July 6, 2005.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

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Case Nos. 4:94cr4021-WS and 4:05cv277-WS/WCS

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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