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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.: 3:99cr77/LC/CJK

TYRELL PLAIR

_______________________________________/

REPORT AND RECOMMENDATION

This matter is before the court upon defendant’s amended motion to vacate, set

aside, or correct sentence pursuant to 28 U.S.C. § 2255 (doc. 151). Rule 4(b) of the

Rules Governing Section 2255 Proceedings 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, it is the

opinion of the undersigned that the court is without jurisdiction to entertain

defendant’s motion and that it should be summarily dismissed.

BACKGROUND AND ANALYSIS

Defendant was sentenced to a term of 240 months imprisonment after his

conviction for one count of conspiracy to distribute cocaine and cocaine base (doc.

61). On March 16, 2001, he challenged his conviction by means of a motion to

vacate pursuant to 28 U.S.C. § 2255 (doc. 86). On November 19, 2003, defendant’s

2255 motion was denied. (Doc. 116). Defendant filed a second 2255 motion on June
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18, 2012 (doc. 149) and an amended motion on July 2, 2012 (doc. 151). Plaintiff

seeks relief under the Supreme Court’s decisions in Chaidez v. United States, 133 S.

Ct. 1103 (2013), Missouri v. Frye, 132 S. Ct. 1399 (2012), and Lafler v. Cooper, 132

S. Ct. 1376 (2012), which he asserts are new rulings of law demonstrating ineffective

assistance on the part of his trial counsel. (Doc. 151).

Before a second or successive application for section 2255 relief is filed in the

district court, he 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); Carter v. United States, 405 F.

App’x 409 (11th Cir. 2010); United States v. Holt, 417 F.3d 1172, 1175 (11th Cir.

2005). This authorization is required even when, as here, a defendant bases his

motion on the claimed existence of 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(h)(2). Defendant has not obtained authorization from the Eleventh

Circuit Court of Appeals to file a successive motion. Therefore, the instant motion

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to vacate must be dismissed.

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

Defendant filed a “Motion for the Government to File Fed. R. Crim. P. Rule 48 in the 1

Interest of Justice and Fairness Without Prejudice” (doc. 158), which the court construes as a reply

to the government’s response. In the defendant’s response he appears to argue that this court has

jurisdiction under Federal Rule of Criminal Procedure 48. (Doc. 158, p. 1). Rule 48 allows either

the government on leave of court, or the court itself given certain circumstances, to dismiss an

indictment, information, or complaint. FED. R. CRIM. P. 48. Because defendant has already plead

guilty and been sentenced, the government or court cannot dismiss the complaint, indictment, or

information against him. 

Case Nos. 3:99cr77/LC/CJK
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final order adverse to the applicant,” and if a certificate isissued “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 attention of the district judge in the objections

permitted to this report and recommendation.

Accordingly, it is respectfully RECOMMENDED:

1. Defendant’s amended motion to vacate pursuant to 28 U.S.C. § 2255

(doc. 151), be SUMMARILY DISMISSED.

2. Defendant’s motion (doc. 158) be DENIED as MOOT.

2. A certificate of appealability be DENIED.

At Pensacola, Florida, this 19th day of April 2013.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITEDSTATESMAGISTRATEJUDGE

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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. 3:99cr77/LC/CJK