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Case Nos.: 4:92cr4013/WS/CAS; 4:16cv447/WS/CAS 

 IN THE UNITED STATES DISTRICT COURT FOR THE 

 NORTHERN DISTRICT OF FLORIDA 

 TALLAHASSEE DIVISION 

UNITED STATES OF AMERICA, 

v. Case Nos.: 4:92cr4013/WS/CAS 

 4:16cv447/WS/CAS 

PATRICK HOWELL, 

Defendant. 

O R D E R 

This matter is before the court upon Defendant’s motion under 28 

U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in 

federal custody. (ECF No. 2153). Rule 4(b) of these rules provides in part 

that “[i]f it plainly appears from the motion, any attached exhibits, and the 

record of prior proceedings that the moving party is not entitled to relief, the 

judge must dismiss the motion and direct the clerk to notify the moving 

party.” After a review of the record, it is the opinion of the undersigned that 

the court is without jurisdiction to entertain Defendant’s motion and that it 

should be summarily dismissed. 

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Case Nos.: 4:92cr4013/WS/CAS; 4:16cv447/WS/CAS 

BACKGROUND and ANALYSIS

Defendant Patrick Howell and several other codefendants were the 

principal leaders of an elaborate drug operation that operated in several 

Southern states. In March of 1993, Defendant was found guilty of 

numerous drug and racketeering offenses. (See ECF No. 1798). In May of 

1993, Defendant was sentenced to life imprisonment. His convictions were 

affirmed on appeal. See United States v. Mothersill, 87 F.3d 1214, 1217-

20 (11th Cir. 1996). 

 In October of 1997, Defendant filed an amended motion under 28 

U.S.C. § 2255 to vacate, set aside, or correct his sentence. (See ECF No. 

1167). In April of 2000, Defendant’s amended motion was denied. (ECF 

Nos. 1372, 1381). Defendant appealed, and the Eleventh Circuit Court of 

Appeals remanded the case for a determination of whether a certificate of 

appealability should issue. (ECF No. 1538). On remand, the court denied 

a certificate of appealability. (ECF No. 1549). Defendant filed a notice of 

appeal which the Eleventh Circuit construed as a motion for a certificate of 

appealability and denied. (ECF No. 1559). 

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In the instant motion, Defendant seeks sentencing relief under 

Johnson v. United States, 135 S.Ct. 2551 (2015). (ECF No. 2153). Before 

a second or successive application for § 2255 relief is filed in the district 

court, a defendant must move in the appropriate court of appeals for an 

order authorizing the district court to consider the application. 28 U.S.C. 

§ 2244(b)(3) and § 2255(h); Felker v. Turpin, 518 U.S. 651 (1996). 

Defendant filed the required application seeking to file a second or 

successive § 2255 motion. However, on July 21, 2016, the Eleventh Circuit 

Court of Appeals denied Defendant’s application because he failed to make 

a prima facie showing of the existence of either of the grounds set forth in 

28 U.S.C. § 2255(h). (ECF No. 2154). Therefore, the instant motion to 

vacate must be dismissed because the court lacks jurisdiction to consider 

Defendant’s successive § 2255 motion without proper authorization. 

CERTIFICATE OF APPEALABILITY 

 As amended effective December 1, 2009, § 2255 Rule 11(a) provides 

that “[t]he district court must issue or deny a certificate of appealability 

when it enters a final order adverse to the applicant,” and if a certificate is 

issued “the court must state the specific issue or issues that satisfy the 

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Case Nos.: 4:92cr4013/WS/CAS; 4:16cv447/WS/CAS 

showing required by 28 U.S.C. § 2253(c)(2).” A timely notice of appeal 

must still be filed, even if the court issues a certificate of appealability. 

§ 2255 11(b). 

 After review of the record, the court finds no substantial showing of 

the denial of a constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 

U.S. 473, 483–84 (2000) (explaining how to satisfy this showing) (citation 

omitted). Therefore, it is also recommended that the court deny a 

certificate of appealability in its final order. 

 The second sentence of new Rule 11(a) provides: “Before entering 

the final order, the court may direct the parties to submit arguments on 

whether a certificate should issue.” If there is an objection to this 

recommendation by either party, that party may bring this argument to the 

attention of the district judge in the objections permitted to this report and 

recommendation. 

 Accordingly, it is respectfully RECOMMENDED: 

1. Defendant’s motion under 28 U.S.C. § 2255 to vacate, set 

aside, or correct sentence by a person in federal custody (ECF 

No. 2153) be SUMMARILY DISMISSED. 

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 2. A certificate of appealability be DENIED. 

 At Tallahassee, Florida, this 15th day of August, 2016. 

S\ CHARLES A. STAMPELOS 

 CHARLES A. STAMPELOS 

 UNITED STATES MAGISTRATE JUDGE

 

NOTICE TO THE PARTIES

 Objections to these proposed findings and 

recommendations must be filed within fourteen (14) days after being 

served a copy thereof. Any different deadline that may appear on the 

electronic docket is for the court’s internal use only, and does not 

control. A copy of objections shall be served upon all other parties. 

If a party fails to object to the magistrate judge's findings or 

recommendations as to any particular claim or issue contained in a 

report and recommendation, that party waives the right to challenge 

on appeal the district court's order based on the unobjected-to factual 

and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636. 

 

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