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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA,

vs. Case No. 5:91cr5008-WS

THOMAS LEE STEPHENS, 

Defendant.

_____________________________/

REPORT AND RECOMMENDATION TO DENY MOTION

Defendant Stephens filed a motion for preservation of rights. Doc. 240. He

wishes to preserve his rights under the Fair Sentencing Act of 2010 (FSA), referencing

Dodd v. United States, 545 U.S. 353, 125 S.Ct. 2478, 162 L.Ed.2d 243 (2005). The

motion was filed only as a precaution, as Defendant is "not sure if the rights recognized

[in the FSA] would follow the same logic" applied in Dodd. Doc. 240, pp. 1-2.

In Dodd the Supreme Court addressed the time limit for filing a 28 U.S.C. § 2255

motion. There is a one year time limit for filing a § 2255 motion, the time commencing

from (as relevant there) "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
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made retroactively applicable to cases on collateral review." § 2255(f)(3).1 The Court

found the language very clear in commencing the time from the first date, rather than

the date on which the right became retroactive. Id., at 357-360, 125 S.Ct. at 2482-83. 

The second clause instead imposed a condition for application of the later

commencement date identified in the first clause,2 as defendant "may take advantage of

the date in the first clause of [§ 2255(f)(3)] only if the conditions in the second clause

are met." Id., at 359, 125 S.Ct. at 2482. 

Dodd interpreted the language of § 2253(f)(3), and the reasoning of that case

does not potentially apply here to a statutory change. Any right afforded by statute or

statutory amendment enacted by Congress is not a right initially and newly recognized

by the Supreme Court, even if the Court ultimately rules that the statute or amendment

applies retroactively. Further, the Eleventh Circuit has held that the FSA does not apply

to defendants sentenced before the FSA was enacted, but does apply to defendants

sentenced after, even if sentenced for offenses committed before enactment. United

States v. Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010), cert. denied, 131 S.Ct. 1833

(2011); United States v. Vera Rojas, 645 F.3d 1234, 1237-40 (11th Cir. 2011). "[T]he

necessary and fair implication of the FSA is that Congress intended the Act to apply to

all sentencings going forward . . . ." Id., at 1239 (emphasis added). 

1

 The Court referred to this section as § 2255 ¶ 6(3). Section 2255 was amended

in 2008 to identify subsections by letter; ¶ 6 therefore became subsection (f). 

2

 Section 2255(f) provides that the one year commences from the latest of four

possible commencement dates. § 2255(f)(1)-(4). The time generally runs from "the

date on which the judgment of conviction becomes final" under § 2255(f)(1), "[b]ut later

filings are permitted where subparagraphs (2)-(4) apply." 545 U.S. at 356-357, 125

S.Ct. at 2481.

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 If Congress ultimately makes the FSA retroactive to those sentenced before its

enactment, it will presumably also provide an avenue to allow retroactive application.3 If

that happens, preservation of rights at this time is unnecessary. 

In addition to changing the statutory penalties, the FSA also directed the United

States Sentencing Commission to review and amend the Sentencing Guidelines to

conform with the FSA. Pub. L. No 111-220, 124 Stat. 2372, § § 5-8. The Commission

has voted to apply the guidelines amendment retroactively, and the permanent

amendment implementing the FSA and retroactivity provision will be effective November

1, 2011, absent contrary action by Congress.4 The Sentencing Commission cannot

make statutory changes of the FSA retroactive, but if a retroactive amendment to the

sentencing guidelines lowers Defendant's term of imprisonment, he may file a motion for

modification of sentence. 18 U.S.C. § 3582(c)(2). But see doc. 215 (order denying

motion for reduction of sentence based on Amendment 706, a retroactive amendment

reducing the guidelines range for some cocaine base offenses, Defendant's offense

level was "determined pursuant to the career offender provisions found in U.S.S.G. §

3

 A bill to enact the Fair Sentencing Clarification Act of 2010 is being considered

in the House of Representatives; on August 25, 2011, the House Committee on the

Judiciary referred it to the Subcommittee on Crime, Terrorism, and Homeland Security.

See http://www.govtrack.us/congress/bill.xpd?bill=h112-2316. There is a link to the bill

as submitted to the House for consideration on June 23, 2011, the latest version of the

bill available on that site. The proposed Act would authorize the sentencing court – on

motion of defendant, the Director of the Bureau of Prisons, or the court's own motion –

to reduce the term of imprisonment for a defendant sentenced prior to the FSA's

enactment, and sentenced pursuant to, inter alia, 21 U.S.C. § 841(b)(1)(A)(iii) or

841(b)(1)(B)(iii). 

4 See http://www.ussc.gov/Legislative_and_Public_Affairs/, press release of June

30, 2011. 

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4B1.1 and not the crack cocaine provisions found in U.S.S.G. § 2D1.1," so he was not

entitled to a reduction) (citation omitted)..

Finally, it is noted that Defendant did not file his motion pursuant to § 2255 and it

is not construed as a § 2255 motion. As Defendant has already been denied § 2255

relief,5 he would have to obtain authorization before filing a second or successive

motion. § 2255(h); § 2255 Rule 9. Accordingly it is unnecessary to determine whether

a certificate of appealability should or should not issue.6

 It is therefore respectfully RECOMMENDED that the motion for preservation of

rights (doc. 240) be DENIED. 

IN CHAMBERS at Tallahassee, Florida, on September 1, 2011.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

5 See docket entries 47, 56, and 58 in ECF (Electronic Case Filing) (amended

motion and report and recommendation as adopted by the court). Given the age of the

case the court is unable to retrieve those documents, and the initial § 2255 motion does

not appear on the ECF docket at all (which begins with doc. 46, the order directing

Defendant to amend). 

6

 The court must issue or deny a certificate of appealability when it enters a final

order adverse to a § 2255 movant. § 2255 Rule 11(a); see also Fed.R.App.P. 22(b)

(requiring that, if the movant appeals, the clerk send any certificate and statement made

under Rule 11(a) along with the notice of appeal to the court of appeals).

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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.

Case No. 5:91cr5008-WS