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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:96cr52-RH

vs. Case No. 4:06cv17-RH/WCS

Case No. 4:06cv28-RH/WCS

JONATHAN ARNESS WESTON,

and DENNIS DEWAYNE JOHNSON, 

Defendants.

 /

REPORT AND RECOMMENDATION ON MOTIONS

This cause is before the court on virtually identical motions filed by Defendants

Weston and Johnson, titled "Jurisdiction and Statutory Challenges Memorandum of Law

and Issue and Authorities to Support the Writ of Habeas Corpus Motion Pursuant to

Fed.R.Civ.P. 15(c) and 28 U.S.C. § 2255 (6)(3)." Docs. 227 and 228, respectively. As

they contain the same claims on the same pages, references to § 2255 motions

followed by a page number are to that page number in both documents. 

Prior History

Following conviction by a jury, Weston was sentenced to a total term of 348

months imprisonment, and Johnson was sentenced to a total term of 380 months

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1

 Johnson also reasserted his argument for application of Amendment 599, but

that claim was addressed in the order denying the § 3582 motions. Doc. 219, p. 2. 

Case Nos. 4:96cr52-RH, 4:06cv17-RH\WCS, and 4:06cv28-RH\WCS

imprisonment. Docs. 144 and 145. The judgments were affirmed on appeal. Doc. 195. 

Defendants filed motions to modify and reduce sentence pursuant to 18 U.S.C. §

3582(c)(2), seeking retroactive application of Amendments 591 and 599 to the

Sentencing Guidelines. Docs. 198 and 199. The motions were denied by the district

judge. Doc. 218. While the amendments cited were retroactive, they did not apply;

moreover, the court determined as a matter of discretion that the sentences should not

be reduced. Id., p. 2. The court noted that an upward departure to a life sentence

"would almost certainly have been permissible," and that the Government's request for

a departure was denied because the court thought the sentences were appropriate

under the guidelines. Id., pp. 1, 8 (citation omitted). Had the sentences been less

under the guidelines, the court would have viewed the Government's request differently. 

Id., p. 8. 

Defendants filed 28 U.S.C. § 2255 motions. Docs. 211 (Weston's amended §

2255 motion) and 213 (Johnson's § 2255 motion). As addressed in the undersigned's

report and recommendation, Defendants asserted that they were convicted under 18

U.S.C. § 1201(a)(1) and 924(c), but sentenced as if convicted under § 2241(a) and (b),

citing Fiore v. White, 531 U.S. 225, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001) and

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348,147 L.Ed.2d 435 (2000).1

The court found Fiore inapposite and that Apprendi does not apply retroactively

on collateral review, citing McCoy v. United States, 266 F.3d 1245 (11th Cir. 2001). 

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2

 The court assumes these are the cases relied upon, though Defendants do not

provide full case names or citations. In Castillo (cited in Apprendi), the Court interpreted

18 U.S.C. § 924(c)(1) as creating a separate substantive offense where a firearm used

is a machine gun. In Apprendi, the Court confirmed the opinion expressed in Jones,

that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. at 2362-63. Under

Ring, a defendant is entitled to a jury determination of aggravating factors necessary for

imposition of the death penalty. In Blakely, the Court applied Apprendi to a state

sentencing guidelines sentence, and explained the term "statutory maximum." Booker

extended the rationale of Apprendi and Blakely to the Federal Sentencing Guidelines. 

Case Nos. 4:96cr52-RH, 4:06cv17-RH\WCS, and 4:06cv28-RH\WCS

Doc. 219, p. 3 and n. 2. The court also said that Apprendi does not apply to

determinations under the sentencing guidelines, citing then binding circuit precedent. 

Id., p. 3. The report and recommendation was adopted and the § 2255 motions were

denied with prejudice. Doc. 220 (order) and 221 (judgment entered on January 8,

2002). Defendant Johnson appealed, and this court denied a certificate of appealability

and leave to proceed in forma pauperis. Doc. 224. The Eleventh Circuit summarily

dismissed for lack of jurisdiction as the appeal was untimely. Doc. 226. 

Current Motions

Defendants ask the court to amend their initial § 2255 motions to rely on

Apprendi, along with Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d

311 (1999), United States v. Booker, 543 U.S. 200, 125 S.Ct. 738, 160 L.Ed.2d 621

(2005), Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403

(2004), Ring v. Arizona, 536 U.S. 584, 589, 122 S.Ct. 2428, 2432, 153 L.Ed.2d 556

(2002), and Castillo v. United States, 530 U.S. 120, 120 S.Ct. 2090, 147 L.Ed.2d 94

(2000). § 2255 motions, pp. 1-2.2 They assert that the amendments should "relate

back" to the filing of those motions, and be considered timely pursuant to Fed.R.Civ.P.

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Case Nos. 4:96cr52-RH, 4:06cv17-RH\WCS, and 4:06cv28-RH\WCS

15(c), § 2255 ¶ 6(3), and Dodd v. United States, 545 U.S. , 125 S.Ct. 2478, 160

L.Ed.2d 621 (2005). Id., pp. 1-2, 4-5, and 9-10. They argue: 

Pursuant to [Dodd], the United States Supreme Court has declared that

this Motion pursuant to 28 U.S.C. § 2255 (6)(3) is the proper remedy to

seek relief and/or preserve a newly recognized constitutional right

established by the Supreme Court in a timely manner.

Id., p. 10. 

Defendants claim that they may raise an intervening change of law in a new

application, citing Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148

(1963). § 2255 motions, p. 7. They claim they could not rely on Blakely or Booker in

the earlier § 2255 motions, that they attempted to preserve this claim then as well as on

appeal and in their § 3582 motions, and seek either resentencing or reinstatement of

their direct appeals. Id., pp. 9-10. 

Legal Analysis

Given the prior § 2255 proceedings, each Defendant must obtain authorization

from the Eleventh Circuit before filing a second or successive § 2255 motion. § 2255

(referencing § 2244); § 2255 Rule 9 ("[b]efore presenting a second or successive

motion, the moving party must obtain an order from the appropriate court of appeals

authorizing the district court to consider the motion, as required by 28 U.S.C. § 2255,

para. 8."). The limitation on recharacterization of a pleading as a first § 2255 motion

"does not extend beyond initial filings," and the authorization requirement for second or

successive motions cannot be "evaded by the simple expedient of labeling second or

successive filings to be something they are not." Gonzalez v. Secretary for Dept. Of

Corrections, 366 F.3d 1253, 1277, n. 10 (11th Cir. 2004) (en banc) (distinguishing

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3

 The Eleventh Circuit did "not distinguish between the three cases before us

based upon whether they involve state prisoners and [28 U.S.C.] § 2254 law or federal

prisoners and § 2255 law, because there is no material difference in the relevant

statutory language, see § 2253(c)(1)(A) & (B), or how the issues arising from that

language should be resolved. [C]ompare § 2244(b) with § 2255 ¶ 8. . . . When we say

'habeas petition' we mean to include '§ 2255 motion,' and our use of 'habeas petitioner'

includes '§ 2255 movant' as well." 366 F.3d at 1262 (some citations omitted). Since the

Supreme Court only had one of the cases before it, involving a state prisoner and §

2254, its consideration was limited to § 2254 cases. 125 S.Ct. at 2646, n. 3. Because §

2244 is referenced in § 2255 ¶ 8, and in light of the Eleventh Circuit's language in

Gonzalez, this court relies on § 2254 as well as § 2255 cases. 

4 Compare Mederos v. United States, 218 F.3d 1252, 1254 (11th Cir. 2000). 

There the district court dismissed a § 2255 motion without prejudice on February 9,

1999, for lack of a signature under penalty of perjury, and the defendant filed a second

motion dated February 17, 1999, curing the deficiency but otherwise identical to the

Case Nos. 4:96cr52-RH, 4:06cv17-RH\WCS, and 4:06cv28-RH\WCS

Castro v. United States, 540 U.S. 375, 382-383, 124 S.Ct. 786, 792, 157 L.Ed.2d 778

(2003)), affirmed on other grounds Gonzalez v. Crosby, 545 U.S. , 125 S.Ct. 2641,

162 L.Ed.2d 480 (2005); see also Jackson v. Crosby, 437 F.3d 1290, 1294-95 and n. 6

(11th Cir. 2006) (noting that the Supreme Court did not disturb the full en banc decision

in Gonzalez).3 

Defendants cannot circumvent the authorization requirement by claiming to file

"amendments" which "relate back" to § 2255 motions, as their motions were denied

years ago. There is nothing to amend or relate back to. Cf. Nyland v. Moore, 216 F.3d

1264, 1266 (11th Cir. 2000) (for purposes of the one year limitations period, § 2254

petition could not relate back to a prior petition which was dismissed without prejudice;

"there is nothing for the current petition to relate back to."); Marsh v. Soares, 223 F.3d

1217, 1219 (10th Cir. 2000) ("Mr. Marsh's second habeas was more than an

amendment; it was a separate filing some three years after the first petition," and could

not relate back) (citing Nyland, other citations omitted).4 

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first. Id., at 1253. It was error to dismiss the motion without allowing amendment, and

the second motion related back to the first for purposes of the one year limitations

period. Id., at 1253-54. 

5

 The court in Nyland distinguished Stewart v. Martinez-Villareal (cited ahead) as

"not pertinent" to whether an amended petition related back to an earlier filing date for

purposes of the one year time limit; Stewart "only addressed the effect of a previous

petition in determining whether a later petition was successive. It did not address the

question of whether previous petition dismissed without prejudice remained pending for

the purpose of having a later filed petition relate back to it." 216 F.3d at 1267 (citations

omitted). 

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Moreover, whether an amendment could relate back is relevant to the one year

limitations period, rather than the restrictions on successive motions. Nyland, 216 F.3d

at 1266.5

 "When an earlier habeas corpus petition was dismissed without prejudice, a

later petition is not 'second or successive' for purposes of § 2244(b)." Dunn v.

Singletary, 168 F.3d 440, 441 (11th Cir. 1999) (emphasis in original, citations omitted);

Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S.Ct. 1618, 1621-22, 140 L.Ed.2d 849

(1998) (competency to be executed claim previously raised and dismissed as premature

should not be considered second or successive under § 2244(b)). Defendants' prior §

2255 motions in this case were clearly denied with prejudice. Docs. 219, 220, and 221

(recommendation, order, and judgment, all using the term "denied with prejudice."). 

Subsequent motions may therefore be filed only with authorization from the court of

appeals. Compare Dunn, 168 F.3d at 442 (even where the judgment indicated

erroneously that prior petition was dismissed without prejudice, since relief was denied

on the merits the restrictions on successive filings applied). 

Defendants cite Sanders, but that case was decided in 1963. This case is

governed by the Antiterrorism and Effective Death Penalty Act (AEDPA), effective in

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6

 Even before the AEDPA, review of claims raised by second or successive

motions was more limited than in Sanders. See Schlup v. Delo, 513 U.S. 298, 318-319,

115 S.Ct. 851, 862-863, 130 L.Ed.2d 808 (1995) (noting 1966 amendment to § 2244(b)

and subsequent cases, delineating the circumstances for reviewing claims raised in a

second or successive petition) (citations and footnotes omitted). 

7

 Varela v. United States, 400 F.3d 864, 867 (11th Cir.), cert. denied, U.S. ,

126 S.Ct. 312 (2005) (Blakely and Booker do not apply retroactively); McCoy v. United

States, 266 F.3d 1245, 1256-58 (11th Cir. 2001) (Apprendi does not apply retroactively). 

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1996. See Felker v. Turpin, 518 U.S. 651, 667, 116 S.Ct. 2333, 2337, 135 L.Ed.2d 827

(1996) (as amended by the AEDPA, § 2244(b)(3) "creates a 'gatekeeping' mechanism

for the consideration of second or successive applications in district court.");6 see also

Taylor v. Gilkey, 314 F.3d 832, 836 (7th Cir. 2002) ("[o]ne goal of the [AEDPA], which

added § 2244(b) and § 2255 ¶ 8 to the Judicial Code, was to replace Sanders with an

approach under which only defined circumstances permit successive collateral

attacks."). 

Defendants argue that § 2255 ¶ 6(3) is, under Dodd, the proper remedy for

raising their claims. Dodd addressed the time limit rather than a second or successive

motion. And even as to the time limit, Dodd does not benefit Defendants. As explained

in Dodd, "Paragraph 6(3) identifies one date and one date only as the date from which

the one 1-year limitation period runs: 'the date on which the right asserted was initially

recognized by the Supreme Court.'" 125 S.Ct. at 2482 (emphasis in original). A

defendant "may take advantage of the date in the first clause of ¶ 6(3) only if the

conditions in the second clause are met." Id. The rights recognized in Apprendi,

Blakely, and Booker have not been made retroactive on collateral review,7

 so ¶ 6(3) as

construed in Dodd does not commence the period. 

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Case Nos. 4:96cr52-RH, 4:06cv17-RH\WCS, and 4:06cv28-RH\WCS

Defendants are essentially claiming that their § 2255 motions were wrongly

denied because the court did not have the benefit of Blakely and Booker. This "attacks

the federal court's previous resolution of a claim on the merits, since alleging that the

court erred in denying habeas relief on the merits is effectively indistinguishable from

alleging that the movant is, under the substantive provisions of the statutes, entitled to

habeas relief." Gonzalez v. Crosby, 545 U.S. , 125 S.Ct. 2641, 2648, 162 L.Ed.2d

480 (2005) (footnote omitted, emphasis by the Court). Whether brought (as here) in a

motion to amend, or brought (as in Gonzalez) in a Fed.R.Civ.P. 60(b) motion

challenging the prior denial of relief, such claims are subject to the restrictions on

second or successive filings. 125 S.Ct. at 2647-48 (citations omitted). 

The current motions must therefore be dismissed as unauthorized. § 2255 ¶ 8; §

2255 Rule 9. Defendants are advised that authorization for filing such claims has been

denied in this circuit. In re Anderson, 396 F.3d 1336, 1339-40 (11th Cir. 2005) (denying

application to file second or successive motion under Blakely and Booker); In re Dean,

375 F.3d 1287, 1290-91 (11th Cir. 2004) (denying leave to file second or successive

motion under Blakely); In re Joshua, 224 F.3d 1281, 1283 (11th Cir. 2000) (denying

leave to file second or successive motion under Apprendi).

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Case Nos. 4:96cr52-RH, 4:06cv17-RH\WCS, and 4:06cv28-RH\WCS

Recommendation

It is therefore respectfully RECOMMENDED that the motions filed by Defendant

Weston (doc. 227) and Defendant Johnson (doc. 228) be SUMMARILY DISMISSED as

authorization for filing a second or successive § 2255 motion has not been granted to

either Defendant by the court of appeals.

IN CHAMBERS at Tallahassee, Florida, on April 19, 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.

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