Page 1 of 3

1

 The court references the document numbers from the docket. There is only

one volume of the file before the court, the rest is in archives. Due to the age of the

case, most documents were not electronically scanned. 

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:89cr4013-WS

vs. Case No. 4:06cv30-WS/WCS

NORMAN SPRATLEY,

Defendant.

 /

REPORT AND RECOMMENDATION ON "NOTICE OF APPEAL"

Defendant Spratley filed a document titled a "Notice of Appeal," referencing

Fed.R.App.P. 4 and 24, and 28 U.S.C. § § 1291 and 1292. Doc. 405. The first

sentence refers to "this application for Certificate of Appealability . . . ." Id., p. 1. 

Defendant claims that United States v. Booker, 543 U.S. 200, 125 S.Ct. 738, 160

L.Ed.2d 621 (2005) applies to his case. Id., pp. 2-4. 

This Defendant has already had a direct appeal and thereafter appealed the

denial of post conviction relief. Docs. 220, 360, 361, 390.1

 Most recently, this court

Case 4:89-cr-04013-WS-WCS Document 406 Filed 07/05/06 Page 1 of 3
Page 2 of 3

2

 According to the docket, the undersigned entered an report and

recommendation in 2001 summarily dismissing a § 2255 as a second or successive

motion. Doc. 374. The court's draft of this document (maintained in WordPerfect)

reflects that Defendant raised a claim under Apprendi v. New Jersey, 530 U.S. 466,

490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), and argued it was not a second

or successive motion as his other motion, actually filed under 18 U.S.C. § 3742, had

been recharacterized as a 2255. The recommendation noted that recharacterization of

the pleading had been made by the Eleventh Circuit, citing docs 361 and 362. The §

3742 motion was denied by the district judge (no report and recommendation was

entered), and reconsideration was denied. Docs. 295, 310.

3

 If Defendant files a § 2255 motion he must use the forms provided by the clerk. 

The motion must be accompanied by two identical copies (including any attachments).

Case Nos. 4:89cr4013-WS and 4:06cv30-WS/WCS

denied a certificate of appealability by order entered on the docket on September 20,

2001. Doc. 389. The Eleventh Circuit also denied relief. Doc. 390 (docketed in this

court on November 14, 2001). There is nothing for Defendant to appeal. 

Relief, if any, is available to Defendant pursuant to 28 U.S.C. § 2255. A previous

§ 2255 motion was summarily dismissed as a second or successive motion, but this

may have been in error in light of Castro v. United States, 540 U.S. 375, 124 S.Ct. 786,

157 L.Ed.2d 778 (2003).2

Defendant may wish to file a § 2255 motion raising all claims.3 If he does, the

court will order the file from archives to determine conclusively whether or not it is a

second or successive motion, or otherwise subject to summary dismissal. If summary

dismissal is not appropriate then Government will be required to respond and Defendant

will have the opportunity to reply. 

Case 4:89-cr-04013-WS-WCS Document 406 Filed 07/05/06 Page 2 of 3
Page 3 of 3

Case Nos. 4:89cr4013-WS and 4:06cv30-WS/WCS

It is therefore RECOMMENDED that the "notice of appeal" (doc. 405), also

seeking a certificate of appealability, be SUMMARILY DENIED as there is nothing to

appeal. The clerk is directed to FORWARD four § 2255 motion forms to Defendant. 

IN CHAMBERS at Tallahassee, Florida, on July 5, 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.

Case 4:89-cr-04013-WS-WCS Document 406 Filed 07/05/06 Page 3 of 3