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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA,

v. Case Nos. 3:99cr50/RV/CJK

 3:16cv329/RV/CJK

PAUL EVERETTE CLAYTON,

Defendant. 

____________________________/

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. (ECF No. 249). 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 on December 15, 2000, to a term of 270 months

imprisonment after pleading guilty to conspiracy to possess with intent to distribute

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more than 500 grams of cocaine and fifty grams or more of crack cocaine. (ECF Nos.

99, 121, 132). Defendant’s conviction and sentence were affirmed on appeal. (ECF

No. 159). Defendant then challenged his conviction by means of a motion to vacate

pursuant to 28 U.S.C. § 2255. (ECF No. 165). This motion was denied in 2004. (See

ECF Nos. 179-182). In February 2009, Defendant unsuccessfully moved to reduce

his sentence based on the crack cocaine amendments (ECF Nos. 190, 191), and the

Eleventh Circuit affirmed. (ECF No. 206). In June 2014, Defendant filed another

motion to vacate seeking relief pursuant to Alleyne v. United States, 133 S. Ct. 2151

(2013), which he argued announced a new substantive rule of law that was

retroactively applicable to his case. (ECF No. 222). That motion was summarily

dismissed as successive because Defendant had failed to obtain authorization from

the Eleventh Circuit to file a successive motion to vacate. (See ECF Nos. 224-227). 

Subsequently, Defendant’s motion for a certificate of appealability was denied by the

Eleventh Circuit. (ECF No. 236). In May 2014, Defendant unsuccessfully moved

to reduce his sentence based on Amendment 782 to the Sentencing Guidelines (ECF

Nos. 238, 239), and the Eleventh Circuit dismissed Defendant’s appeal for want of

prosecution. (ECF No. 248). In the instant motion, the third such motion Defendant

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has filed, he seeks relief based on the Supreme Court’s decision in Johnson v. United

States, 135 S. Ct. 2551 (2015). (ECF No. 249).

As Defendant is aware, before a second or successive application for § 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); United States v.

Holt, 417 F.3d 1172, 1175 (11th Cir. 200; Carter v. United States, 405 F. App’x. 409

(11th Cir. 2010). This authorization is required even when, as here, a defendant

bases his motion 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, despite the fact that

he is clearly aware of the need to do so based on the dismissal of his previous

successive § 2255 motion. (ECF No. 226). Therefore, the instant motion 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

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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 motion to vacate pursuant to 28 U.S.C. § 2255 (ECF No.

249), be SUMMARILY DISMISSED.

2. A certificate of appealability be DENIED.

Case Nos.: 3:99cr50/RV/CJK; 3:16cv329/RV/CJK

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At Pensacola, Florida, this 30th day of September, 2016.

/s/ Charles J. Kahn, Jr. 

CHARLES J. KAHN, JR.

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.: 3:99cr50/RV/CJK; 3:16cv329/RV/CJK

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