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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:91cr4010-WS

vs. Case No. 4:05cv419-WS/WCS

FREDDIE RICHARDSON, 

Defendant.

 /

REPORT AND RECOMMENDATION ON MOTION FOR POST TRIAL RELIEF

Defendant Freddie Richardson filed a document titled "Motion for Post Trial

Relief, Pursuant to Title 18 U.S.C. § 3582 to Modify Sentencing Order and to Provide an

Update (Revised) Pre-Sentence Investigation Report." Doc. 482. Defendant asserts

that the facts used to enhance his sentence were not admitted by him or found by a jury

beyond a reasonable doubt. Defendant relies, inter alia, on United States v. Booker,

543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Blakely v. Washington, 542 U.S.

296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S.

466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Defendant asks the court to modify his

original sentence, correct the judgment, and order a new PSR. 

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1

 Section 3582(b), "[e]ffect of finality of judgment," and (d), "[i]nclusion of an order

to limit criminal association of organized crime and drug offenders," have no apparent

relevance to Defendant's motion. 

Case Nos. 4:91cr4010-WS and 4:05cv419-WS/WCS

Defendant does not reference a particular subsection of § 3582. Defendant may

have intended to invoke § 3582(a), "[f]actors to be considered in imposing a term of

imprisonment," since he also asked for a new PSR. More likely he intended to invoke §

3582(c),1 which provides that a district court may not modify a term of imprisonment

except: (1) upon motion of the Director of the Bureau of Prisons (BOP) if either

extraordinary and compelling reasons exist, or the defendant is at least 70 years old

and has served at least 30 years; (2) to the extent otherwise expressly permitted by

statute or Fed.R.Crim.P. 35; or (3) where the sentencing guideline range applied to a

defendant has since been lowered by the United States Sentencing Commission. 18

U.S.C. § 3582(c)(1) and (2). The Director of the BOP has not moved for modification,

no statute or rule expressly allows modification under these circumstances (as set forth

ahead), and there is no allegation of an applicable amendment by the Sentencing

Commission. 

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." 28 U.S.C. § 2255. 

His claim for relief under Booker and related cases falls under the plain language of §

2255. 

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Case Nos. 4:91cr4010-WS and 4:05cv419-WS/WCS

Defendant previously filed a § 2255 motion, which was denied with prejudice. 

Docs. 395 and 397 (report and recommendation as adopted by order entered on the

docket on December 4, 1997). As Defendant has already been denied § 2255 relief, he

must obtain authorization from the Eleventh Circuit before filing a second or successive

§ 2255 motion. § 2255 (referencing § 2244); § 2255 Rule 9 (amended effective

December 1, 2004) ("[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."). 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.), cert. denied, U.S. , 126 S.Ct. 312

(2005) (Blakely and Booker do not apply retroactively on collateral review even when

raised in initial § 2255 motion). 

As this is essentially a second or successive § 2255 petition, and authorization

for filing has not been granted, this court lacks jurisdiction to consider it. Hubbard v.

Campbell, 379 F.3d 1245, 1246 (11th Cir.), cert. denied, 125 S.Ct. 15 (2004) (district

court lacked jurisdiction to entertain second or successive petition, where petitioner had

not obtained authorization for filing it). 

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Case Nos. 4:91cr4010-WS and 4:05cv419-WS/WCS

It is therefore respectfully RECOMMENDED that Defendant's motion for post trial

relief, doc. 482, be SUMMARILY DISMISSED as authorization for filing a second or

successive § 2255 motion has not been granted. 

IN CHAMBERS at Tallahassee, Florida, on January 3, 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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