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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA

vs. Case Nos.: 4:99cr17/RH/GRJ

4:14cv318/RH/GRJ

ALEX RANDELL

_______________________________________/

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.

(Docs. 101, 102.) Rule 4(b) of the Rules Governing Section 2255 Proceedings for the

United States District Courts 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 is

without jurisdiction to entertain Defendant’s motion and therefore the motion should be

summarily dismissed.

BACKGROUND and ANALYSIS

Defendant was sentenced on July 23, 1999 to a term of life imprisonment after a

jury convicted him of two controlled substance offenses. (Docs. 23, 33.) The Eleventh

Circuit affirmed his conviction and sentence on appeal in June of 2000. (Doc. 51.) 

Defendant has filed numerous post-conviction motions. First, Defendant timely filed a

motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255, which the

Court denied on the merits in August of 2002 over Defendant’s objection. (Docs. 53,

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63–65.) Defendant unsuccessfully moved for reconsideration and also unsuccessfully

appealed. (Docs. 67–69, 82.) In 2006, the Eleventh Circuit denied Defendant’s motion

for leave to file a second or successive motion pursuant to 28 U.S.C. § 2255. (Doc. 83.) 

In 2010, Defendant filed a Rule 60(b) motion, which the district court denied. (Docs. 84,

85.) The Eleventh Circuit affirmed. (Doc. 97.) In 2011, Defendant filed a motion

pursuant to 18 U.S.C. § 3582 for retroactive application of Amendment 750 to the

Sentencing Guidelines. (Docs. 98, 99.) The instant motion was filed pursuant to the

prison mailbox rule on June 16, 2014. (Doc. 101 at 13.) Defendant claims that the

instant motion is timely filed in light of the actual innocence exception and that it is

based on new case law, specifically Descamps v. United States, 133 S.Ct. 1924 (2013)

(see id. at 12; doc. 102).

This court does not have jurisdiction to entertain Defendant’s motion. As

Defendant should be aware, before a second or successive application for § 2255 relief

is filed in the district court, the litigant must typically 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); United States v.

Holt, 417 F.3d 1172, 1175 (11th Cir. 2005); Carter v. United States, 405 Fed. App’x 409

(11th Cir. 2010). Defendant’s successive motion falls within the larger subset of cases

for which such authorization is required, as he is challenging the same judgment he

challenged in his initial motion. This authorization is required even when, as here, a

defendant asserts that his motion is based on the existence of a new rule of

constitutional law, made retroactive to cases on collateral review, that was previously

Case Nos.: 4:99cr17/RH/GRJ; 4:14cv318/RH/GRJ

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unavailable. 28 U.S.C. § 2255(h)(2). Defendant has not obtained authorization from the

Eleventh Circuit Court of Appeals to file a successive motion, and therefore, the instant

motion to vacate must be dismissed without prejudice.

CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United

States District Court (“§ 2255 Rules”) 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. Rule 11(b), § 2255 Rules.

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 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:

Case Nos.: 4:99cr17/RH/GRJ; 4:14cv318/RH/GRJ

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1. Defendant’s motion to vacate pursuant to 28 U.S.C. § 2255 (Doc. 101),

should be SUMMARILY DISMISSED, as this court lacks jurisdiction to consider a

successive motion absent authorization from the Eleventh Circuit.

2. A certificate of appealability should be DENIED.

IN CHAMBERS at Gainesville, Florida, this 7 day of July, 2014. th

 

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Any 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. A copy of objections shall be served upon all other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

Case Nos.: 4:99cr17/RH/GRJ; 4:14cv318/RH/GRJ

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