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Case No. 4:99cr62-RH and 4:13cv476-RH/CAS

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

v. CASES NO. 4:99cr62-RH

4:13cv476-RH/CAS

ANTHONY SWATZIE,

Defendant.

_________________________________/

ORDER DENYING THE § 2255 MOTION

The defendant Anthony Swatzie has moved under 28 U.S.C. § 2255 for 

relief from his judgment of conviction. The motion is before the court on the 

magistrate judge’s report and recommendation, ECF No. 96. No objections have 

been filed. This order accepts the report and recommendation and denies the 

§ 2255 motion.

Mr. Swatzie was convicted of possessing cocaine and crack cocaine with 

intent to distribute. The minimum mandatory sentence on this charge was 10 years 

in prison. His guideline range was 360 months to life. As a matter of discretion, 

based on a number of factors including that Mr. Swatzie continued to deal drugs 
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Case No. 4:99cr62-RH and 4:13cv476-RH/CAS

while ostensibly cooperating with law enforcement, I sentenced Mr. Swatzie to life 

in prison. 

Drug weight was not submitted to the jury, because under the law of the 

circuit at the time of trial, drug weight was a sentencing factor not subject to a jury 

trial. That changed with Apprendi v. New Jersey, 530 U.S. 466 (2000). Under 

Apprendi, a defendant in a criminal case has a right to a jury trial on any fact, other 

than a prior conviction, that increases the maximum sentence that could be 

imposed on a charge. Apprendi was decided while Mr. Swatzie’s appeal was 

pending, and Mr. Swatzie relied on the new decision. The Eleventh Circuit held 

that even if the failure to submit drug quantity to the jury was error, it made no 

difference in Mr. Swatzie’s case.

Mr. Swatzie now invokes Alleyne v. United States, 133 S. Ct. 2151 (2013), 

which extended Apprendi to any fact, other than a prior conviction, that increases 

the minimum mandatory sentence that must be imposed on a charge. Just as 

Apprendi made no difference in Mr. Swatzie’s case, so also Alleyne makes no 

difference in Mr. Swatzie’s case. And it is virtually certain that the Eleventh 

Circuit ultimately will hold that Alleyne is not retroactively applicable to cases on 

collateral review. See McCoy v. United States, 266 F.3d 1245, 1256-58 (11th Cir. 

2001) (holding that Apprendi is not retroactively applicable to cases on collateral 

review). 
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Case No. 4:99cr62-RH and 4:13cv476-RH/CAS

In any event, as the report and recommendation correctly concludes, this is a 

second or successive motion that cannot go forward without authorization from the 

Court of Appeals. The motion must be denied for lack of jurisdiction.

A defendant may appeal the denial of a § 2255 motion only if the district 

court or court of appeals issues a certificate of appealability. Under 28 U.S.C. 

§ 2253(c)(2), a certificate of appealability may issue “only if the applicant has 

made a substantial showing of the denial of a constitutional right.” Miller-El v. 

Cockrell, 537 U.S. 322, 335-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84 

(2000); Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983); see also Williams v. 

Taylor, 529 U.S. 362, 402-13, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000) (setting 

out the standards applicable to a § 2254 petition on the merits). As the Court said 

in Slack:

To obtain a COA under § 2253(c), a habeas prisoner must make 

a substantial showing of the denial of a constitutional right, a 

demonstration that, under Barefoot, includes showing that reasonable 

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

petition should have been resolved in a different manner or that the 

issues presented were “adequate to deserve encouragement to proceed 

further.” 

Slack, 529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at 893 n.4). Further, in 

order to obtain a certificate of appealability when dismissal is based on procedural 

grounds, a petitioner must show, “at least, that jurists of reason would find it 

debatable whether the petition states a valid claim of the denial of a constitutional 
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Case No. 4:99cr62-RH and 4:13cv476-RH/CAS

right and that jurists of reason would find it debatable whether the district court 

was correct in its procedural ruling.” Slack, 529 U.S. at 484. 

The defendant has not made the required showing. This order thus denies a 

certificate of appealability. Because the defendant has not obtained—and is not 

entitled to—a certificate of appealability, any appeal by the defendant will not be 

taken in good faith. I certify under Federal Rule of Appellate Procedure 24(a) that 

any appeal will not be taken in good faith and that the defendant is not otherwise 

entitled to proceed in forma pauperis on appeal. Accordingly,

IT IS ORDERED:

1. The clerk must enter a judgment stating, “The defendant’s motion for 

relief under 28 U.S.C. § 2255 is DENIED.

2. The defendant’s application for a certificate of appealability is DENIED.

3. Leave to proceed on appeal in forma pauperis is DENIED.

SO ORDERED on October 7, 2013.

s/Robert L. Hinkle

United States District Judge