IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA

vs. Case No. 4:92cr4013-WS

Case No. 4:13cv138-WS/CAS

PATRICIA CARLENE CLARKE,

Defendant.

 /

REPORT AND RECOMMENDATION TO DISMISS § 2255 MOTION

On March 19, 2013, Defendant Patricia Carlene Clarke, proceeding pro se, filed

a motion to vacate, set-aside, or correct sentence pursuant to 28 U.S.C. § 2255. Doc.

2062. Defendant seeks relief based on the United States Supreme Court’s recent

decisions in Missouri v. Frye, – U.S. –, 132 S.Ct. 1399 (Mar. 21, 2012); Lafler v.

Cooper, – U.S. –, 132 S.Ct. 1376 (Mar. 21, 2012); and Martinez v. Ryan, – U.S. –, 132

S.Ct. 1309 (Mar. 20, 2012). See Doc. 2062. 

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 reviewing the record, the
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undersigned concludes the Court lacks jurisdiction to entertain Defendant’s § 2255

motion.

Defendant was previously denied relief under § 2255. See Docs. 1188 (§ 2255

motion), 1393 (report and recommendation to deny § 2255 on merits with prejudice),

1431 (order adopting recommendation and denying § 2255 motion with prejudice). 

Defendant then tried again to obtain relief under § 2255 and that motion was summarily

dismissed as successive. See Doc. 1690 (§ 2255 motion), 1710 (report and

recommendation to dismiss § 2255 as successive), 1714 (order adopting report and

recommendation and dismissing § 2255 motion), 1715 (judgment dismissing § 2255

motion as authorization for filing second or successive § 2255 motion not granted by

Eleventh Circuit). 

As Defendant has been previously informed, before filing a second or successive

application for § 2255 relief in the district court, Defendant 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), 2255(h). See Doc. 1710; see, e.g., Felker v. Turpin, 518 U.S.

651 (1996); United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005). Defendant

has not obtained authorization from the Eleventh Circuit Court of Appeals to file a

successive motion. Therefore, the instant § 2255 motion should be summarily

dismissed. 

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

Case Nos. 4:92cr4013-WS and 4:13cv138-WS/CAS
Page 3 of 4

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).” Rule 11(b)

provides that a timely notice of appeal must still be filed, even if the court issues a

certificate of appealability. 

After review of the record, the undersigned finds no substantial showing of the

denial of a constitutional right. 28 U.S.C. § 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 that “[b]efore 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 pursuant to 28 U.S.C. § 2255 (Doc. 2062) be

SUMMARILY DISMISSED.

2. A certificate of appealability be DENIED.

IN CHAMBERS at Tallahassee, Florida, on May 21, 2013.

S/ Charles A. Stampelos 

CHARLES A. STAMPELOS

UNITED STATES MAGISTRATE JUDGE

Case Nos. 4:92cr4013-WS and 4:13cv138-WS/CAS
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NOTICE TO PARTIES

Within fourteen (14) days after being served with a copy of this report and

recommendation, a party may serve and file specific, written objections to the

proposed findings and recommendations. A party may respond to another

party's objections within fourteen (14) days after being served with a copy

thereof. Failure to file specific objections limits the scope of review of proposed

factual findings and recommendations.

Case Nos. 4:92cr4013-WS and 4:13cv138-WS/CAS