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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.1:94cr1036/MP/GRJ

JAMES R. YOUNG

REPORT AND RECOMMENDATION

This matter is before the court upon Defendant’s “Motion Under 28

U.S.C. § 2255 To Vacate, Set Aside, or Correct Sentence by a Person in

Federal Custody.” (ECF No. 213.) 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 Defendant’s submission and the record, the undersigned

concludes that the court does not have jurisdiction to entertain Defendant’s

successive § 2255 motion and that it should be dismissed.

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BACKGROUND AND ANALYSIS

Defendant was sentenced on December 14, 1994 to a term of 262

months imprisonment after a jury convicted him of violations of 18 U.S.C.

§§ 922(g) and 924(e). His conviction was affirmed on appeal and the

Supreme Court denied certiorari. (ECF Nos. 55, 57.) In February of 2000,

Defendant filed a motion to vacate under 28 U.S.C. § 2255, which was

denied as untimely. (ECF. Nos. 58, 60, 61). After objection from

Defendant, the court then reopened the matter and conducted an

evidentiary hearing to determine whether Defendant had timely delivered

his petition. The court again dismissed the petition as untimely, finding that

Defendant had submitted fraudulent evidence at the hearing. (See ECF

Nos. 88, 89.) 

In 2005 the Eleventh Circuit denied Defendant's request to file a

successive 2255 motion. (ECF No. 113.) Defendant pursued a Rule 60(b)

motion in 2015, which was denied. (ECF Nos. 199, 200.) He now has filed

a successive §2255 petition claiming that he is entitled to relief pursuant to

the Supreme Court’s recent decision in Johnson v. United States, 135

S.Ct. 2551 (2015). (ECF No. 213.) 

Case Nos.: 1:94cr1036/MP/GRJ; 1:15cv272/MP/GRJ

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The Court does not have jurisdiction to entertain Defendant’s motion.

As Defendant is 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 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.1

Whether Defendant could obtain such authorization is unlikely as the Eleventh 1

Circuit has denied an application for leave to file a second or successive § 2255 motion

based on Johnson, finding that although the case announced a new substantive rule of

constitutional law, the Supreme Court had not held that it should apply retroactively on

collateral review. In re Rivero, 797 F.3d 986, 989 (11th Cir. 2015).

Case Nos.: 1:94cr1036/MP/GRJ; 1:15cv272/MP/GRJ

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 CERTIFICATE OF APPEALABILITY

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

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.

Case Nos.: 1:94cr1036/MP/GRJ; 1:15cv272/MP/GRJ

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Accordingly it is respectfully RECOMMENDED:

1. Defendant’s Motion Under 28 U.S.C. § 2255 To Vacate, Set

Aside, or Correct Sentence by a Person in Federal Custody, (ECF No.

213), should be DISMISSED for lack of jurisdiction.

2. A certificate of appealability should be DENIED.

IN CHAMBERS at Gainesville, Florida, this 17 day of December,

th

2015.

 

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

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, and does not control. A

copy of objections shall be served upon all other parties. If a party

fails to object to the magistrate judge's findings or recommendations

as to any particular claim or issue contained in a report and

recommendation, that party waives the right to challenge on appeal

the district court's order based on the unobjected-to factual and legal

conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.

Case Nos.: 1:94cr1036/MP/GRJ; 1:15cv272/MP/GRJ

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