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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:98cr44-RH

vs. Case No. 4:06cv35-RH/WCS

RONALD SYLVESTER BLOOM,

Defendant.

 /

REPORT AND RECOMMENDATION ON EX PARTE NOTICE

This cause is before the court on Defendant's "Ex-Parte Notice of Booker's

Violations and Preservation of Issues." Doc. 309. Defendant asserts entitlement to

relief under United States v. Booker, 543 U.S. 200, 125 S.Ct. 738, 160 L.Ed.2d 621

(2005), and filed his notice to preserve the one year filing date under Dodd v. United

States, 545 U.S. 353, 125 S.Ct. 2478, 160 L.Ed.2d 621 (2005). He claims that the

decision in Dodd, commencing the one year period from the date a new right was

recognized rather than when it is made retroactive on collateral review, violates the

Suspension Clause. 

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1

 Section 2255 recognizes a number of commencement dates for the one year

period. "In most cases, the operative date from which the limitation period is measured

will be the one identified in ¶ 6(1): 'the date on which the judgment of conviction

becomes final.'" 545 U.S. at , 125 S.Ct. at 2481 (quoting § 2255, other citation

omitted). 

Case Nos. 4:98cr44-RH and 4:06cv35-RH/WCS

The Court in Dodd addressed the language of 28 U.S.C. § 2255 ¶ 6(3),

commencing the one year limitations period for filing a § 2255 motion from "the date on

which the right asserted was initially recognized by the Supreme Court, if that right has

been newly recognized by the Supreme Court and made retroactively applicable to

cases on collateral review." § 2255, ¶ 6(3). 545 U.S. at , 125 S.Ct. at 2481 (quoting

the statute).1

 The Court explained that "Paragraph 6(3) identifies one date and one date

only as the date from which the one 1-year limitation period runs: 'the date on which the

right asserted was initially recognized by the Supreme Court.'" Id., at 2482 (emphasis in

original). That date "does not apply at all if the conditions in the second clause – the

right 'has been newly recognized by the Supreme Court and made retroactively

applicable to cases on collateral review' – have not been satisfied." Id. "Thus, if this

Court decides a case recognizing a new right, a federal prisoner seeking to assert that

right will have one year from this Court's decision within which to file his § 2255 motion. 

He may take advantage of the date in the first clause of ¶ 6(3) only if the conditions in

the second clause are met." Id. (emphasis added). 

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

prejudice following an evidentiary hearing. Docs. 246 (report and recommendation),

258 (order adopting recommendation with additional discussion), 259 (judgment entered

on the docket July 15, 2002). Leave to proceed in forma pauperis was granted and a

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Case Nos. 4:98cr44-RH and 4:06cv35-RH/WCS

certificate of appealability issued for appeal. Doc. 287. The judgment was affirmed. 

Doc. 302. 

Given the prior proceedings, timeliness is not the only obstacle for this

Defendant. He must obtain authorization from the Eleventh Circuit before even filing a

second or successive § 2255 motion. § 2255 (referencing § 2244); § 2255 Rule 9

(amended effective December 1, 2004) ("[b]efore presenting a second or successive

motion, the moving party must obtain an order from the appropriate court of appeals

authorizing the district court to consider the motion, as required by 28 U.S.C. § 2255,

para. 8."). Absent authorization, this court lacks jurisdiction to consider a second or

successive motion. United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005), citing

Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003) (2255 motion). 

Finally, it is noted that the Supreme Court recently granted certiorari as to the

retroactive application of Blakely and Booker. Burton v. Waddington, 142 Fed. Appx.

297 (9th Cir. 2005) (not published in the Federal Reporter), cert. granted, U.S. ,

126 S.Ct. 2352 (Mem) (June 5, 2006). If and when a new rule of constitutional law,

previously unavailable, is "made retroactive to cases on collateral review by the

Supreme Court," leave for filing a second or successive motion is expressly authorized,

but such leave must still be obtained from the court of appeals. § 2255 (incorporating §

2244). If authorization for filing in this court is ever granted, Defendant's claim will most

likely be time barred. Dodd, 545 U.S. at , 125 S.Ct. at 2483 ("because of the

interplay between ¶¶ 8(2) and 6(3) [of § 2255], an applicant who files a second or

successive motion seeking to take advantage of a new rule of constitutional law will be

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Case Nos. 4:98cr44-RH and 4:06cv35-RH/WCS

time barred except in the rare case in which this Court announces a new rule of

constitutional law and makes it retroactive within one year."). 

To the extent Defendant's notice can be construed as a motion to preserve the

issue so that Defendant will not be subject to the one year limitations period of § 2255 in

the future, it should be denied. 

It is therefore respectfully RECOMMENDED that Defendant Bloom's notice and

preservation of issues (doc. 309) be DENIED.

IN CHAMBERS at Tallahassee, Florida, on June 28, 2006.

 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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