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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: 3:97cr130/RV

3:05cv140/RV/MD

HAROLD DENSON

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 and supporting memorandum of

law (doc. 131). This motion is not on the proper form as required by the Local

Rules. However, requiring amendment would be futile, as the motion is subject to

summary dismissal. Rule 4(b) of the Rules Governing Section 2255 Proceedings

provides in part that “[i]f it plainly appears from the face of the motion and any

annexed exhibits and the prior proceedings in the case that the movant is not

entitled to relief in the district court, the judge shall make an order for its summary

dismissal and cause the movant to be notified.” After a review of the record, it is the

apparent that the motion is successive and that it should be summarily dismissed.

I. BACKGROUND

Defendant pleaded guilty to conspiracy to possess with intent to distribute

cocaine base and possession with intent to distribute cocaine base on a date certain

and on April 21, 1999 was sentenced to a term of life imprisonment. He did not file

a timely direct appeal, but filed several motions or pleadings after his sentencing,

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The court also notes that the defendant’s motion is facially untimely. Defendant’s prior § 2255 motion

was dismissed as untimely, and despite defendant’s attempt to couch his claim s as “jurisdictional” issues, so

that he may escape the tim e bar, this is not an accurate characterization. And even if it were, this does not

allow him to circum vent the ban on second or successive motions absent authorization from the appropriate

appellate court. 

Case No: 3:97cr130/RV; 3:05cv140/RV/MD

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

2255. (Doc. 93), which was denied as untimely. (Doc. 109, 110). In the instant

motion, defendant purports to raise the “jurisdictional” issue that his sentence was

unconstitutional because facts used to increase his sentence were not found by a

jury beyond a reasonable doubt.

II. LEGAL ANALYSIS

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 (11th Cir. 1996). A three-judge panel of the court of appeals,

§ 2244(b)(3)(B), may authorize the filing of a second or successive motion only if it

determines that the motion contains claims which rely on either:

(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. In re Dean, 375 F.3d 1287 (11th Cir. 2004). Defendant’s motion 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 (11th Cir. 2000); Medina

v. Singletary, 960 F.Supp. 275 (M.D. Fla 1997).1

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Case No: 3:97cr130/RV; 3:05cv140/RV/MD

Based on the foregoing, it is respectfully RECOMMENDED:

The motion to vacate, set aside or correct sentence pursuant to 18 U.S.C. §

2255 (doc. 131) be summarily DISMISSED as successive. 

At Pensacola, Florida, this 21

st day of April, 2005.

 /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 (11th Cir. 1988).

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