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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:97cr64-RH

vs. Case No. 4:05cv109-RH/WCS

KUNZEA JACKSON,

Defendant.

 /

REPORT AND RECOMMENDATION TO DISMISS § 2255 MOTION

Defendant filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255. Doc.

311. It appears that the motion is successive and should be summarily dismissed as

this court lacks jurisdiction to consider a second or successive motion absent

authorization from the Eleventh Circuit. § 2255; 28 U.S.C. § 2244. 

Procedural History 

Judgment was entered on June 1, 1998, and no appeal was taken from that

judgment. Doc. 116. Defendant filed a § 2255 motion on April 21, 1999. Doc. 130. 

Claims were not set forth on the § 2255 form. The attached pages (referenced in the

motion) included an "outline of incident," followed by a number of claims. Generally the

court requires a defendant to file an amended § 2255 motion when the claims are not

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set forth on the motion form itself, to avoid the possibility that claims may be missed

because "buried" in an attachment, as well as for efficiency of review. The court did not

review the motion for almost six months due to activity in the file pertaining to another

Defendant, however, so the Government was directed to respond to the motion as filed. 

Doc. 141. 

The Government filed a response, summarizing and opposing the claims raised. 

Doc. 143. The Government argued that four of the claims were waived by the guilty

plea, and that the three claims of ineffective assistance of counsel were without merit. 

Defendant filed a response. Doc. 147 (attachment). 

Addressing "[t]he claims which have been gleaned from the motion," the

undersigned recommended that relief be denied with prejudice. Doc. 161. The court

found the following claims procedurally defaulted because not raised at trial or on

appeal: that the conviction was obtained by a coerced confession, that the prosecutor

was guilty of misconduct, that there was a delay in bringing Defendant before the

magistrate, and that there was an issue as to the authenticity of the search and arrest

warrant. Doc. 161, pp. 1, 2 and 6. The court found Defendant's claims of ineffective

assistance of counsel to be conclusory, without specifics, and insufficient to state a

claim under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). Id., pp. 2-3. 

The court addressed Defendant's claim that counsel "stated he would apply for

an appeal and failed to do so." Id., p. 3 (quoting the § 2255 motion). The court noted

the applicable legal standard, and that Defendant's clam was conclusory and had not

been repeated in response to the Government's arguments. Id., pp. 3-5. Defendant

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was advised that if she filed an affidavit in response to the recommendation, the claim

would be remanded for an evidentiary hearing. Id., p. 5. 

Defendant filed an affidavit. Doc. 165. The report and recommendation was

therefore adopted as the opinion of the court, denying all claims except the claim that

counsel failed to file a notice of appeal on request, and that claim was remanded for an

evidentiary hearing. Doc. 169. 

Counsel was appointed, and an evidentiary hearing was held. Doc. 180

(minutes), doc. 182 (transcript). The parties filed written closing arguments. Docs. 183

and 188. 

A second report and recommendation was entered on April 24, 2002. Doc. 190. 

It was recommended that this aspect of the § 2255 motion be granted. Doc. 190. The

recommendation was adopted and the § 2255 motion granted in part. Doc. 212. 

Defendant filed a notice of appeal but it was ineffective as the court had not vacated the

original judgment to restart the time for filing a notice of appeal. Doc. 231 (noting the

problem, appointing counsel, and advising that the court would grant a Fed.R.Civ.P.

60(b)(6) motion). Defendant was ultimately resentenced and an amended judgment

entered. Doc. 250 (transcript) and 242 (amended judgment entered on the docket on

August 18, 2003). 

An appeal was taken, and the judgment (as reentered) was affirmed. Doc. 276. 

The sole issue on appeal was whether this court erred in denying Defendant a safety

valve reduction under U.S.S.G. § 5C1.2. Id., p. 2. 

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Current § 2255 Motion

Defendant has again filed a § 2255 motion form, setting forth claims by

attachment. Doc. 311. Defendant asks the court to determine whether the holdings in

United States v. Booker, U.S. , 125 S.Ct. 738, 2005 WL 50108 (January 12, 2005)

and Blakely v. Washington, 542 U.S. , 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) apply

to her case. Doc. 311, attachment (cover page). See also, Apprendi v. New Jersey,

530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S.

584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). 

Defendant also asserts ineffective assistance of counsel because counsel

Richard Smith (later replaced by Clyde Taylor) failed to advise her against taking a

polygraph, and never asked to review the charts. Doc. 311, attachment, p. 1. She

asserts that Clyde Taylor failed to perform adequately due to nonpayment of fees. She

lists a number of issues he failed to raise, and contends that he only had limited contact

with her prior to sentencing. Id., pp. 1-10. Defendant supports her claims by reference

to the transcript of the evidentiary hearing, held on the initial § 2255 motion. Defendant

also asserts prosecutorial misconduct. Id., pp. 7-9. JJJJ

Legal Analysis

"[T]o file a second or successive § 2255 motion, the movant must first file an

application with the appropriate court of appeals for an order authorizing the district

court to consider it. See 28 U.S.C. § 2244(b)(3)(A). Without authorization, the district

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1

 In the footnote, it was noted that "[t]he appellate court, in turn, must certify that

the second or successive § 2255 motion contains: '(1) newly discovered evidence that,

if proven and viewed in [the] light of the evidence as a whole, would be sufficient to

establish by clear and convincing evidence that no reasonable factfinder would have

found the movant guilty of the offense; or (2) a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court, that was previously

unavailable.' See 28 U.S.C. § 2255." Id., n. 4.

Case Nos. 4:97cr64-RH and 4:05cv109-RH/WCS

court lacks jurisdiction to consider a second or successive petition." Farris v. United

States, 333 F.3d 1211, (11th Cir. 2003) (footnote and citation omitted).1

Defendant has not obtained authorization for filing a second or successive

motion. The issue is more complicated than the usual successive motion case,

however, because here an amended judgment was entered after the § 2255 motion was

granted in part. 

If the only issue raised and decided in the prior § 2255 proceeding had been

counsel's failure to file a notice of appeal, this motion would not be considered

successive. McIver v. United States, 307 F.3d 1327, 1329 (11th Cir. 2002). The court

noted that:

As a formal matter . . . McIver's present challenge is not a second or

successive motion because it attacks not the judgment at issue in his

earlier § 2255 motion but the new judgment that was entered to permit his

out of time appeal . . . . Conversely, McIver's first § 2255 motion did not

attack the judgment now at issue. Nor, for that matter, did the earlier

motion attack the original judgment in the sense of seeking to have a

conviction overturned, or sentence vacated. Rather, McIver's first § 2255

motion sought only the opportunity to prosecute a direct appeal, which

might or might not have led (and, in fact, did not lead) to the reversal of his

conviction and sentence.

Id., at 1330 (footnote omitted). The court reasoned that, "[s]ince a defendant who

prosecutes a timely appeal is entitled thereafter to bring a collateral attack on the

judgment, a defendant who wins an out-of-time appeal must also be entitled to one full

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and fair collateral attack." Id. (citation omitted). If the prisoner denied an out of time

appeal had to "plead all collateral claims alongside the request for an out of time

appeal," such that other claims would later be foreclosed, "such a rule would place

defendants denied an appeal by ineffective counsel at a considerable disadvantage

relative to ones able to bring collateral claims after prosecuting a direct appeal." Id., at

1331-32. 

The court noted by footnote that "[a]lthough we reject the Government's

contention that prisoners must file any collateral challenges in their § 2255 motion

seeking an out-of-time appeal, we recognize that prisoners may proceed in this manner

should they so choose." Id., at 1331, n. 2. In such a situation:

We think the best approach is to dismiss without prejudice or hold in

abeyance the resolution of remaining collateral claims pending the direct

appeal. There are significant inefficiencies to any other approach. If the

district court were to deny a collateral claim under a different standard of

review than applies on direct appeal, then the defendant might be entitled

to relitigate the same claim in his reinstated direct appeal. Moreover, both

the government and the petitioner could pursue collateral appellate

proceedings on other claims that the outcome of the direct appeal might

render unnecessary. Although [we previously] instructed district courts to

resolve all claims in petitions brought pursuant to 28 U.S.C. § 2254,

equally clear precedent of this Court directs that collateral claims should

not be entertained while a direct appeal is pending. Once the court has

determined that the petitioner is entitled to a direct appeal, such an appeal

is "pending" for all relevant policy purposes.

Id. (citations omitted). The court held that the reimposition of sentence to allow an outof-time appeal "resets to zero the counter of collateral attacks pursued," and does not

render a later motion second or successive. Id., at 1332, quoting Shepeck v. United

States, 150 F.3d 800, 801 (7th Cir. 1998). 

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Here Defendant presented a failure to appeal claim in the mix with a number of

other claims. Indeed, it was unclear at the time of the first report and recommendation

whether Defendant was entitled to a hearing on the appeal claim. In this court's

experience, it is not uncommon for a vague failure to appeal claim to be included with

other § 2255 claims. When this occurs, this court requires an affidavit setting forth

specific facts (such as when defendant made the request, counsel's response, and any

further discussions) and (if appropriate) appoints counsel for purposes of an evidentiary

hearing. If a hearing is held, the court generally will dispose of most (if not all) of the

other § 2255 claims on the record, to narrow the focus of the hearing. 

In this case, it is because Defendant was granted relief and therefore able to

prosecute an untimely appeal that the question arises whether a subsequent § 2255

motion is successive. In the court's experience there are many other cases where there

is no basis for allowing an out of time appeal, or even for appointing counsel or holding

a hearing once the affidavit has been filed. To say that a defendant does not have to

include all other claims in a § 2255 motion seeking an out-of-time appeal must on some

level presuppose that the belated appeal claim is valid; i.e., that the defendant will win

an appeal and should therefore be restored to the position he would have been in had

counsel filed a timely notice of appeal in the first instance. If that happens, as it did for

Defendant McIver (and, as it turns out, Defendant Jackson), then it makes sense that all

other claims should be brought after the direct appeal mandate issues. But if the appeal

claim is not meritorious (as is often the case), to allow resolution of that claim before

any others must be pleaded would mean that defendants could file that one claim and

wait – perhaps far beyond the one year limitations period – to plead any other claims. 

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In hindsight, once it was determined that a belated appeal was warranted in this

case, the undersigned might have recommended summary dismissal of other claims

without prejudice. But that is not what happened. Instead, the other claims were

adjudicated first, and the right to appeal claim was remanded to me for an evidentiary

hearing. Thus, the other claims were adjudicated before it could be said that a direct

appeal was pending. Also, the claims currently before the court have nothing to do with

Defendant's resentencing or the appeal, but pertain to the original judgment. See

Walker v. Crosby, 341 F.3d 1240, 1245 n. 4 (11th Cir. 2003) (collecting cases from

other circuits suggesting that the court should separate new claims challenging

resentencing from old claims which could have been raised in initial motion for relief). 

On the current record, Defendant is actually in a better position for purposes of

pleading her § 2255 claims than if she had a direct appeal from the original judgment

without the intervening § 2255 proceeding. Specifically, Defendant has the benefit of

the § 2255 transcript, which is referenced within her current § 2255 claims. Further,

appellate counsel had the benefit of the original § 2255 motion and the report and

recommendation, for purposes of determining which claims Defendant wanted to raise

but were defaulted from § 2255 review because not pursued on appeal. 

Given that the court previously denied a § 2255 motion with prejudice as to all

but one claim, the current § 2255 motion containing claims which did not arise as a

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2

 By contrast, if Defendant had a claim of ineffectiveness of appellate counsel

(which could not have existed until the prior § 2255 was granted and the appeal

allowed), it could be presented in a § 2255 motion and would not be considered second

or successive. Walker, 341 F.3d at 1245, n. 4. 

3

 If this court has correctly determined that this is a second or successive § 2255

motion, then it lacks jurisdiction to consider it or to issue a certificate of appealability. 

Boone v. Secretary, Dept. of Corrections, 377 F.3d 1315,1317 (11th Cir. 2004). A

certificate of appealability is nonetheless required for the appeal. Cf. Gonzalez, 366

F.3d at 1263-64 (a certificate of appealability is required to appeal denial of

Fed.R.Civ.P. 60(b) motion to reopen earlier order denying § 2254 or § 2255). Another

(perhaps quicker) way for Defendant to obtain review would be to file an application for

leave to file a second or successive § 2255 motion with the Eleventh Circuit. Defendant

must use the appropriate form provided upon request by the Clerk of the Eleventh

Circuit (56 Forsyth Street N.W., Atlanta, GA 30303). 11th Cir. Rule 22-2(a). 

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result of the reentry of sentence and appeal2 must be deemed a second or successive

motion, which may not be considered absent authorization from the Eleventh Circuit. 

Though it is recommended that the § 2255 be summarily dismissed, "reasonable

jurists could debate whether (or, for that matter, agree that) the petition should have

been resolved in a different manner" and the issues "deserve encouragement to

proceed further." Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 1603-04,

146 L.Ed.2d 542 (2000); Barefoot v. Estelle, 463 U.S. 880, 893, n. 4 103 S.Ct. 3383,

3394, n. 4, 77 L.Ed.2d 1090 (1983). It is therefore further recommended that a

certificate of appealability be granted for appeal pursuant to § 2253(c). It is also

recommended that leave to proceed in forma pauperis on appeal be granted.3

 

Recommendation

It is therefore respectfully RECOMMENDED that Defendant Jackson's § 2255

motion (doc. 311) be SUMMARILY DISMISSED because it is a second or successive

motion and authorization for filing has not been granted by the court of appeals. It is

further RECOMMENDED that, if this recommendation is adopted and Defendant files a

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notice of appeal, a certificate of appealability be ISSUED and leave to proceed in forma

pauperis be GRANTED.

IN CHAMBERS at Tallahassee, Florida, on April 6, 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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