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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. 4:05cv462-WS/WCS

EMERSON DAVIS, 

Defendant.

 /

REPORT AND RECOMMENDATION ON § 2255 MOTION

Defendant Emerson Davis filed a document titled "Memorandum in Support of 28

U.S.C. § 2255 6(3) Motion." Doc. 1676. Paragraph 6 of § 2255 provides a one year

time limit for filing a § 2255 motion, which runs from the latest of the dates specified in

that paragraph. Paragraph 6, section (3) provides that the one year may commence on

"the date on which the right asserted was initially recognized by the Supreme Court, if

that right has been newly recognized by the Supreme Court and made retroactively

applicable to cases on collateral review." 

Defendant asserts that his sentence was invalid and must be vacated in light of

United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) and

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

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Case Nos. 4:92cr4013-WS and 4:05cv462-WS/WCS

1-3. He asserts that the one year period for filing a § 2255 motion commenced on the

date of the Booker opinion. Id., pp. 3-4, citing Dodd v. United States, 545 U.S. , 125

S.Ct. 738, 160 L.Ed.2d 621 (2005). 

Regardless of the time limit, a second or successive § 2255 motion may not be

filed or considered by this court absent authorization from the court of appeals. § 2255,

referencing 28 U.S.C. § 2244. Defendant previously filed a motion to vacate his

sentence pursuant to § 2255. Docs. 1356-1358 (amended motion, memorandum, and

affidavit). Counsel was appointed, an evidentiary hearing was held, and relief was

denied. Docs. 1507 and 1572 (report and recommendation as adopted by the court),

and 1573 (judgment entered on the docket on September 24, 2002). 

All this was noted in a report and recommendation addressing arguments

recently filed by this Defendant. Docs. 1633 and 1640 (report and recommendation as

adopted by the court). It was also noted that Defendant's § 2255 motion had been

denied with prejudice on all grounds, a certificate of appealability was denied by this

court and the Eleventh Circuit, and a petition for writ of certiorari had been denied. Doc.

1633, pp. 2-6. As Defendant had not been granted authorization for filing a second or

successive § 2255 motion by the court of appeals and his then current motions sought

relief available, if at all, under § 2255, it was recommended they be summarily denied. 

Id., pp. 6-9. Finally, it was noted that Defendant was not entitled to relief under

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and its

progeny (including Blakely and Booker) because those cases did not apply retroactively

on collateral review. Id., p. 8. 

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Case Nos. 4:92cr4013-WS and 4:05cv462-WS/WCS

Defendant again seeks relief available, if at all, by second or successive motion

filed with authorization from the court of appeals. Authorization has not been granted,

and the current § 2255 motion must be dismissed. 

It is therefore respectfully RECOMMENDED that Defendant's § 2255 motion,

doc. 1676, be SUMMARILY DISMISSED as authorization for filing a second or

successive motion has not been granted. 

IN CHAMBERS at Tallahassee, Florida, on December 9, 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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