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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.: 4:97cr35/RH/GRJ

4:14cv305/RH/GRJ

HAROLD KENNETH HERRING

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. 93, 94). Rule 4(b) of the Rules Governing Section 2255 Proceedings provides in

part that “[i]f it plainly appears from the face of the motion and 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 it does not have jurisdiction to entertain

Defendant’s motion and, therefore, the motion should be summarily dismissed.

BACKGROUND and ANALYSIS

Defendant pleaded guilty to controlled substance and firearm charges and was

sentenced to a term of life imprisonment in January of 1998. (Docs. 31, 38.) He filed a

pleading titled “Petitioner’s Jurisdictional Question in Reference to his Jurisdictionally

Defective Indictment and the District Court’s Lack of Jurisdiction to Enhance the

Petitioner’s Sentence” (Doc. 49), which the court construed as a motion pursuant to 28

U.S.C. § 2255 and denied in October of 2001. (See Docs. 52, 56.) The Eleventh Circuit

affirmed the denial of Defendant’s § 2255 motion. (Doc. 68.) In 2003, Defendant filed

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a request for relief from the judgment, complaining that the prior motion had been

erroneously characterized as a motion pursuant to 28 U.S.C. § 2255. (Doc. 70.) The

Court also denied this motion over Defendant’s objection, noting in its judgment that

Defendant’s motion was “in substance a successive motion under 28 U.S.C. § 2255.” 

(Docs. 71, 73, 74, 75.) The Eleventh Circuit declined to issue a certificate of

appealability and Defendant’s appeal was dismissed. (Doc. 86.) In 2008 Defendant

moved unsuccessfully pursuant to 18 U.S.C. § 3582 to reduce his sentence under

Amendment 706, the crack guidelines amendment. (Docs. 90, 92.) Nothing further was

filed until Defendant filed the instant motion to vacate.

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

Case Nos.: 4:97cr35/RH/GRJ; 4:14cv305/RH/GRJ

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of Appeals to file a successive motion and, therefore, the instant motion to vacate must

be dismissed without prejudice.

CERTIFICATE OF APPEALABILITY

Section 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 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.

Based on the foregoing, it is respectfully RECOMMENDED:

1. Defendant’s motion to vacate pursuant to 28 U.S.C. § 2255 (Doc. 93),

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

successive motion absent authorization from the Eleventh Circuit.

Case Nos.: 4:97cr35/RH/GRJ; 4:14cv305/RH/GRJ

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2. A certificate of appealability should be DENIED.

IN CHAMBERS at Gainesville, Florida, this 19 day of June 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 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. 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.: 4:97cr35/RH/GRJ; 4:14cv305/RH/GRJ

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