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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:92cr4013-WS\

vs. Case No. 4:06cv61-WS/WCS

NORRIS MOTHERSILL,

Defendant.

 /

REPORT AND RECOMMENDATION TO DENY MOTION TO PRESERVE

This cause is before the court on Defendant Mothersill's motion to preserve the

right recognized in United States v. Booker, 543 U.S. 200, 125 S.Ct. 738, 160 L.Ed.2d

621 (2005), or alternatively a motion to vacate or set aside sentence pursuant to 28

U.S.C. § 2255 ¶ 6(3). Doc. 1698. Defendant also cites Dodd v. United States, 545 U.S.

353, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005). 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).

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1

 In hindsight this may have been error, but it was arguably to Defendant's benefit

as the motion would otherwise have been subject to summary dismissal (without any

consideration of the merits) as an unauthorized second or successive motion. See,

Villenueva v. United States, 346 F.3d 55, 59-61 (2d Cir. 2003), cert. denied, 542 U.S.

928 (2004) (collecting cases, concluding: "unlike cases where a habeas or § 2255

petition is dismissed without prejudice for failure to exhaust or as premature, a time-bar

cannot be corrected. Accordingly, we hold that a habeas or § 2255 petition that is

properly dismissed as time-barred under AEDPA constitutes an adjudication on the

merits for successive purposes."); Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003)

(holding "that a prior untimely petition does count because a statute of limitations bar is

not a curable technical or procedural deficiency but rather operates as an irremediable

defect barring consideration of the petitioner's substantive claims."). In this case the

dismissal was expressly with prejudice, and Defendant took an appeal. Compare

Case Nos. 4:92cr4013-WS and 4:06cv61-WS/WCS

Defendant asserts that he has one year from the pronouncement of a new rule in

Booker in which to assert his claim under Dodd. Id., p. 2. His unsigned motion

(received by the clerk on February 2, 2006) was purportedly mailed on January 9, 2006,

less than a year after the Booker decision of January 12, 2005. For relief, Defendant

asks the court to preserve his right to this new rule, or allow him to assert the right by

filing a § 2255 ¶ 6(3) motion. Id. 

Regardless of timeliness under § 2255 ¶ 6(3), Defendant cannot "preserve" his

request or file a § 2255 motion in this court at this time. 

Defendant filed a first § 2255 motion which was dismissed with prejudice as

untimely. Docs. 1236 and 1240 (report and recommendation as adopted by the court). 

Defendant took an appeal, and a certificate of appealability was denied by this court and

the Eleventh Circuit. Docs. 1267 and 1297. 

When Defendant filed his second § 2255 motion, the court found it was not a

second or successive motion requiring authorization for filing as the prior disposition

was not on the merits. Docs. 1307 (order determining the motion did not require

authorization), and 1317, p. 1 (adopting doc. 1307 by reference).1

 The second § 2255

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Pavlovsky v. VanNatta, 431 F.3d 1063, 1064-65 (7th Cir. 2005) (noting general rule

that dismissal as untimely is generally on the merits and bars relitigation, but where

previous petition was dismissed expressly without prejudice as untimely, the petitioner

"may have been lulled into thinking he didn't have to appeal" the dismissal). Whether or

not the second § 2255 motion should have been dismissed summarily or on the merits,

the current motion would be in the same procedural posture. 

2

 Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403

(2004). 

Case Nos. 4:92cr4013-WS and 4:06cv61-WS/WCS

motion was denied with prejudice. Docs. 1317 and 1321 (report and recommendation

as adopted by the court). Defendant did not appeal. 

Defendant later sought unsuccessfully to obtain authorization for filing a second

or successive § 2255 motion from the Eleventh Circuit. Doc. 1523 (rejecting application

because, inter alia, the Supreme Court had not made retroactive the rule announced in

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). 

Given the prior proceedings, timeliness is not the primary 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). 

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

retroactive application of Blakely2

 and Booker. Burton v. Waddington, 142 Fed. Appx.

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Case Nos. 4:92cr4013-WS and 4:06cv61-WS/WCS

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

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."). 

It is therefore respectfully RECOMMENDED that Defendant Mothersill's motion to

preserve or alternatively motion to vacate (doc. 1698) be DENIED.

IN CHAMBERS at Tallahassee, Florida, on July 12, 2006.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

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Case Nos. 4:92cr4013-WS and 4:06cv61-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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