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Cases No. 4:97cr35-RH/GRJ and 4:14cv305-RH/GRJ

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

v. CASES NO. 4:97cr35-RH/GRJ

 4:14cv305-RH/GRJ

HAROLD KENNETH HERRING,

Defendant.

_________________________________/

ORDER DENYING THE § 2255 MOTION

In 1997 the defendant Harold Kenneth Herring pleaded guilty to possessing 

crack cocaine with the intent to distribute it (and another offense). Because Mr. 

Herring had two or more prior convictions for a “felony drug offense,” and based 

on the amount of crack involved in the offense, the mandatory sentence was life in 

prison. See 21 U.S.C. § 841(b)(1)(A).

Mr. Herring challenges the sentence under 28 U.S.C. § 2255, asserting, in 

effect, that based on more recent decisions, the prior convictions on which the 

mandatory life sentence was based should not have been used to enhance his 

sentence. The motion is before the court on the magistrate judge’s report and 

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Cases No. 4:97cr35-RH/GRJ and 4:14cv305-RH/GRJ

recommendation, ECF No. 95, and the objections, ECF No. 96. I have reviewed 

de novo the issues raised by the objections. 

This order accepts the report and recommendation and denies the § 2255 

motion.

Mr. Herring’s challenge to his sentence is plainly wrong on the merits. Mr. 

Herring had prior convictions in Florida state court for possessing a controlled 

substance (presentence report ¶ 36), possessing cocaine (presentence report ¶ 38), 

and conspiring to traffic in cocaine (presentence report ¶ 39). All were felonies. 

Each was properly counted as a “felony drug offense” under § 841(b)(1)(A). 

To be sure, other federal provisions—not including § 841(b)(1)(A)—apply 

only to prior convictions for drug trafficking offenses or are limited in other 

respects. Examples include certain guideline provisions and the Armed Career 

Criminal Act. Recent decisions have affected provisions of this kind, and in some 

respects the law has changed. But § 841(b)(1)(A) applies to any “felony drug 

offense,” not just to offenses that involve trafficking or meet other specific criteria. 

Mr. Herring’s contrary contention is wrong.

In any event, as the report and recommendation correctly notes, this is a 

second or successive § 2255 motion that cannot go forward without prior 

authorization from the United States Court of Appeals for the Eleventh Circuit. 

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The Eleventh Circuit so held in connection with Mr. Herring’s last challenge to his 

sentence, back in 2003.

A defendant may appeal the denial of a § 2255 motion only if the district 

court or court of appeals issues a certificate of appealability. Under 28 U.S.C. 

§ 2253(c)(2), a certificate of appealability may issue “only if the applicant has 

made a substantial showing of the denial of a constitutional right.” Miller-El v. 

Cockrell, 537 U.S. 322, 335-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84 

(2000); Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983); see also Williams v. 

Taylor, 529 U.S. 362, 402-13 (2000) (setting out the standards applicable to a 

§ 2254 petition on the merits). As the Court said in Slack:

To obtain a COA under § 2253(c), a habeas prisoner must make a 

substantial showing of the denial of a constitutional right, a 

demonstration that, under Barefoot, includes showing that reasonable 

jurists could debate whether (or, for that matter, agree that) the 

petition should have been resolved in a different manner or that the 

issues presented were “adequate to deserve encouragement to proceed 

further.” 

Slack, 529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at 893 n.4). Further, in 

order to obtain a certificate of appealability when dismissal is based on procedural 

grounds, a petitioner must show, “at least, that jurists of reason would find it 

debatable whether the petition states a valid claim of the denial of a constitutional 

right and that jurists of reason would find it debatable whether the district court 

was correct in its procedural ruling.” Slack, 529 U.S. at 484. 

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Cases No. 4:97cr35-RH/GRJ and 4:14cv305-RH/GRJ

Mr. Herring has not made the required showing. This order thus denies a 

certificate of appealability. Because Mr. Herring has not obtained—and is not 

entitled to—a certificate of appealability, any appeal will not be taken in good 

faith. I certify under Federal Rule of Appellate Procedure 24(a) that any appeal 

will not be taken in good faith and that Mr. Herring is not otherwise entitled to 

proceed in forma pauperis on appeal. Accordingly,

IT IS ORDERED:

1. The clerk must enter a judgment stating, “The defendant Harold Kenneth 

Herring’s motion for relief under 28 U.S.C. § 2255 is DENIED.”

2. A certificate of appealability is DENIED.

3. Leave to proceed on appeal in forma pauperis is DENIED.

SO ORDERED on September 18, 2014.

s/Robert L. Hinkle

United States District Judge

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