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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

v .

 Case Nos.: 4:03cr19/RH/GRJ

 4:16cv469/RH/GRJ

JEREMY GRAHAM,

Petitioner. 

REPORT AND RECOMMENDATION

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

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

federal custody. (ECF No. 146.) Petitioner has also filed a motion to

appoint counsel. (ECF No. 147.) 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, the Court concludes that the Court

does not have jurisdiction to entertain Petitioner’s motion and, therefore,

the petition should be summarily dismissed.

Case Nos.: 4:03cr19/RH/GRJ; 4:16cv469/RH/GRJ

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BACKGROUND and ANALYSIS

In June of 2003, Petitioner Jeremy Graham was found guilty of

possession with intent to distribute Methylenedioxymethamphetamine,

commonly known as “MDMA,” and possession of a firearm by a convicted

felon. (See ECF No. 42.) In November of 2003, Petitioner was sentenced

to a term of 295 months’ imprisonment. (See ECF No. 65.) On appeal, the

Eleventh Circuit Court of Appeals affirmed Petitioner’s convictions and

sentence. (See ECF No. 93.) However, the United States Supreme Court

vacated the judgment and remanded the case to the Eleventh Circuit for

further consideration in light of United States v. Booker, 125 S. Ct. 738

(2005). See Graham v. United States, 125 S. Ct. 1098 (2005). On

remand, the Eleventh Circuit reinstated its decision affirming Petitioner’s

convictions and sentences. (See ECF No. 98.)1

In February of 2006, Petitioner filed a motion under 28 U.S.C. § 2255

to vacate, set aside, or correct his sentence. (ECF No. 100.) In November

of 2007, Petitioner’s motion was denied. (See ECF Nos. 112, 115, 116.) 

The court also denied a motion for a certificate of appealability. (ECF

1 On September 24, 2015, Judge Walker denied a sentence reduction under

Amendment 782. (See ECF No. 143.)

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No.122.) Petitioner then filed a motion for a certificate of appealability in

the Eleventh Circuit which was denied. (ECF No. 136.) In April of 2012,

the Eleventh Circuit denied Petitioner’s application for leave to file a second

or successive § 2255 motion based on Cunningham v. California, 549 U.S.

270 (2007). (ECF No. 139.) 

In the instant motion, Petitioner seeks sentencing relief under

Johnson v. United States, 135 S. Ct. 2551 (2015). (ECF No. 146.) Before

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

court, a petitioner 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). 

Petitioner filed the required application seeking to file a second or

successive § 2255 motion. On July 11, 2016, the Eleventh Circuit Court of

Appeals denied Petitioner’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. 145.) Therefore, the instant motion to vacate

must be dismissed because the court lacks jurisdiction to consider

Petitioner’s successive § 2255 motion without proper authorization. 

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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

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

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

recommendation.

Accordingly, it is respectfully RECOMMENDED:

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

or correct sentence by a person in federal custody (ECF No.

146) should be SUMMARILY DISMISSED without prejudice.

2. Petitioner’s motion to appoint counsel (ECF No. 147) should be

DENIED.

3. A certificate of appealability should be DENIED.

IN CHAMBERS at Gainesville, Florida, this 7 day of September, th

2016.

/Gary R. Jones 

GARY R. JONES

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. 

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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.

Case Nos.: 4:03cr19/RH/GRJ; 4:16cv469/RH/GRJ

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