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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.: 4:99cr62/RH 

4:13cv476/RH/CAS

ANTHONY SWATZIE

_______________________________________/

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.

95). 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, 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 life months imprisonment after a jury

convicted him of controlled substance and weapons offenses (docs. 27, 29). His

conviction and sentence were affirmed on appeal on January 5, 2001 (doc. 46). He then

challenged his conviction by means of a motion to vacate pursuant to 28 U.S.C. § 2255

(doc. 48). This motion was denied in 2003 (see docs. 57–59). Defendant challenged his

conviction through various other postconviction motions, each of which was denied (see

docs. 60–63; 64–65; 66–68; 69–71; 84, 89, 92). Defendant has now filed another motion
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to vacate in which he seeks relief pursuant to the recent Supreme Court decision in Alleyne

v. United States, 133 S.Ct. 2151 (2013), which he contends is retroactively applicable to

his case (doc. 95 at 4, 12, 20–22). 

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 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). 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 of Appeals to file a successive motion, and

therefore, the instant motion to vacate must be dismissed.

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

Case Nos.: 4:99cr62/RH; 4:13cv476/RH/CAS
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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 motion to vacate pursuant to 28 U.S.C. § 2255 (doc. 95), be

SUMMARILY DISMISSED, as this court lacks jurisdiction to consider a successive

motion absent authorization from the Eleventh Circuit.

2. A certificate of appealability be DENIED.

At Tallahassee, Florida, this 28th day of August, 2013.

/s/ Charles A. Stampelos 

CHARLES A. STAMPELOS

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.: 4:99cr62/RH; 4:13cv476/RH/CAS