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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA

vs. Case No. 4:95cr4034-WS

Case No. 4:06cv18-WS/WCS 

ROBERT JUNIOR CLARK,

Defendant.

_____________________________/

REPORT AND RECOMMENDATION TO DISMISS PLEADING

This cause is before the court on Defendant's document titled "Jurisdiction of this

Court is invoked at 4th, 5th, 6th, 8th, 13th and 14th Amendment of the [U]nited States

Constitution. STRUCTURAL ERROR, NOT HARMLESS." Doc. 180. Defendant claims

that his conviction and sentence violate United States v. Booker, 543 U.S. 220, 125

S.Ct. 738, 160 L.Ed.2d 621 (2005), Blakely v. Washington, 542 U.S. 296, 124 S.Ct.

2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.

2348, 147 L.Ed.2d 435 (2000). Defendant challenges the court's subject matter

jurisdiction based on structural error and defects in the indictment. For relief, Defendant

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 1 The initial § 2255 motion (doc. 97) was filed before Apprendi was decided in June

of 2000. The second report and recommendation addressed, inter alia, Defendant's

supplemental claim under Apprendi. Doc. 122, pp. 1-6 (noting potential timeliness

issues, finding the claim procedurally defaulted, that the default could not be excused

due to ineffectiveness of counsel as there was no attorney error, and Defendant could

not demonstrate actual innocence). The Eleventh Circuit later held that Apprendi did

not apply retroactively on collateral review. McCoy v. United States, 266 F.3d 1245,

1256-58 (11th Cir. 2001). 

 2

 "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, may move the

court which imposed the sentence to vacate, set aside or correct the sentence." § 2255

(first paragraph).

Case Nos. 4:95cr4034-WS and 4:06cv18-WS/WCS

asks "that his indictment be dismissed for lack of Subject Matter Jurisdiction, that [the]

Conviction and Sentence be Reversed, Dismissed." Doc. 180, pp. 10-11. 

Defendant filed a 28 U.S.C. § 2255 motion which was denied with prejudice, and

a certificate of appealability was denied by this court and the court of appeals. Docs.

107, 122 (first and second report and recommendation),1 127 (order adopting

recommendations), 128 (judgment), 139 and 147 (orders denying certificate of

appealability). Later motions were summarily dismissed. See Docs. 150, 152, 164,

177. 

The current pleading now before the court seeks relief available only under the

plain language of 28 U.S.C. § 2255.2

 It is essentially an unauthorized second or

successive motion, and should be dismissed as authorization has not been granted by

the court of appeals. § 2255 (incorporating § 2244); see also Gonzalez v. Secretary for

Dept. Of Corrections, 366 F.3d 1253, 1277, n. 10 (11th Cir. 2004) (en banc), affirmed on

other grounds Gonzalez v. Crosby, 545 U.S. , 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005)

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Case Nos. 4:95cr4034-WS and 4:06cv18-WS/WCS

(Castro v. United States, 540 U.S. 375, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003), limiting

the district courts authority to recharacterize document as a first § 2255 motion, "does

not extend beyond initial filings, and nothing the Supreme Court said or did in that case

implies that the § 2244(b) restrictions can be evaded by the simple expedient of labeling

second or successive filings to be something they are not."); see also Jackson v. Crosby,

 F.3d , 2006 WL 237143 (11th Cir. February 2, 2006) at *3 and *5, n. 6 (noting that

the Supreme Court did not disturb the full en banc decision in Gonzalez). 

Authorization for filing a successive motion raising Booker has been denied in this

circuit. In re Anderson, 396 F.3d 1336, at 1339 (11th Cir. 2005) (denying leave to file

successive motion as the Supreme Court has not made Booker or Blakely retroactive on

collateral review). See also Varela v. United States, 400 F.3d 864, 867 (11th Cir.), cert.

denied, U.S. , 126 S.Ct. 312 (2005) (Blakely and Booker do not apply retroactively

on collateral review even when raised in initial § 2255 motion). 

It is therefore respectfully RECOMMENDED that Defendant's motion, doc. 180,

be SUMMARILY DISMISSED as an unauthorized second or successive § 2255 motion. 

IN CHAMBERS at Tallahassee, Florida, on February 7, 2006.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

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Case Nos. 4:95cr4034-WS and 4:06cv18-WS/WCS

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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