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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA,

5:89cr5014-WS 

vs. 5:05cv97-WS/WCS

IVORY JOE PRUITT, 

Defendant.

 /

REPORT AND RECOMMENDATION ON MOTIONS

This cause is before the court on Defendant's motion for the court to take judicial

notice of adjudicated facts, and motion to correct clerical mistakes in judgment pursuant

to Fed.R.Crim.P. 36. Docs. 127 and 128. This Defendant previously filed a 28 U.S.C. §

2255 motion which was denied with prejudice. Docs. 75, 98, and 100. Denial of relief

was affirmed. Doc. 126 (finding that untimely amended § 2255 claims did not relate

back to timely claims, and initial claims were without arguable merit). 

Defendant now asserts actual innocence and jurisdictional error. Doc. 127, pp.

3-8. Specifically, he asserts four jurisdictional errors: in his sentencing enhancement

under U.S.S.G. § 4B1.1; in application of the version of the United States Sentencing

Guidelines in effect at the time of sentencing rather than the time of the offense (in

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Case Nos. 5:89cr5014-WS and 5:05cv97-WS/WCS

violation of the Ex Post Facto Clause); in enhancing his sentence despite the

Government's failure to file a timely notice under 21 U.S.C. § 851; and in sentencing

Defendant based on crack cocaine when there was no evidence that the substance was

crack cocaine. Doc. 128, pp. 1-21. Defendant asserts actual and factual innocence as

to involvement with crack cocaine and career offender sentencing status. Id., pp. 22-33. 

Defendant also asserts constructive denial of the assistance of counsel at sentencing. 

Id., pp. 33-44. 

Defendant has not identified any "clerical error" in the record or "error in the

record arising from oversight or omission" under Fed.R.Crim.P. 36. Defendant's claims

arise under 28 U.S.C. § 2255, which provides a remedy to "[a] prisoner in custody under

sentence of a court established by Act of Congress claiming the right to be released

upon the ground that the sentence was imposed in violation of the Constitution or laws

of the United States, or that the court was without jurisdiction to impose such sentence,

or that the sentence was in excess of the maximum authorized by law, or is otherwise

subject to collateral attack . . . ." § 2255. The court should construe the current

documents as an attempt to file a second or successive motion under § 2255. See

Gonzalez v. Secretary for Dept. Of Corrections, 366 F.3d 1253, 1277, n. 10 (11th Cir.

2004), pet. for cert. granted in part, U.S. , 125 S.Ct. 961; cert. denied, U.S. ,

125 S.Ct. 965 (2005) (limitations on recharacterizing document as a first § 2255 motion

do not extend beyond initial filings, or allow movant to evade the restrictions on second

or successive motions). In Gonzalez, the court found that a Fed.R.Civ.P. 60 motion will

be treated as such, rather than an unauthorized second or successive § 2255 motion,

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Case Nos. 5:89cr5014-WS and 5:05cv97-WS/WCS

only if based on claim of clerical error in the § 2255 judgment itself, or claim of fraud on

the court which led to the denial of § 2255 relief. 366 F.3d at 1278 (footnote and

citations omitted). Defendant does not identify any errors in the prior § 2255 judgment. 

This court may not consider a second or successive motion absent authorization

from the court of appeals. § 2255 (referencing § 2244); § 2255 Rule 9 (party must

obtain authorization from court of appeals before presenting a second or successive

motion). 

It is therefore respectfully RECOMMENDED that Defendant's motion for the court

to take judicial notice of adjudicated facts (doc. 127) and motion to correct clerical

mistakes in judgment pursuant to Fed.R.Crim.P. 36 (doc. 128) be DISMISSED, as leave

for filing a second or successive § 2255 motion has not been authorized by the court of

appeals. 

IN CHAMBERS at Tallahassee, Florida, on May 9, 2005.

s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

 

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10

days after being served with a copy thereof. Failure to file specific objections

limits the scope of review of proposed factual findings and recommendations.

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