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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: 5:93cr5040/LAC

5:06cv7/LAC/MD

MELVIN MCPHERSON

REPORT AND RECOMMENDATION

This matter is before the court upon defendant’s motion to vacate, set aside,

or correct sentence pursuant to 28 U.S.C. § 2255 (doc. 144). Rule 4(b) of the Rules

Governing Section 2255 Proceedings provides in part that “[i]f it plainly appears

from the face of the motion and any annexed exhibits and the prior proceedings in

the case that the movant is not entitled to relief in the district court, the judge shall

make an order for its summary dismissal and cause the movant to be notified.” After

a review of the record, it is the opinion of the undersigned that the motion is

successive and that it should be summarily dismissed.

I. BACKGROUND

Defendant pleaded guilty tocontrolledsubstanceoffenses and was sentenced

to a term of 300 months imprisonment. He did not appeal, but he filed a motion to

vacate, set aside or correct sentence on August 1, 2001 (doc. 114) which was denied

on October 29, 2001. (Doc. 126 & 128). Thus, the motion now before the court is his

second such motion. In the instant motion, defendant seeks relief pursuant to the

Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738,

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The court also notes that the defendant’s motion is facially untimely. Defendant’s prior § 2255 motion

was dismissed as untimely, and despite defendant’s attempt to couch his claim s as “jurisdictional” issues, so

that he may escape the tim e bar, this is not an accurate characterization. And even if it were, this does not

allow him to circum vent the ban on second or successive motions absent authorization from the appropriate

appellate court. 

Case No: 5:93cr5040/LAC; 5:06cv7/LAC/MD

160 L.Ed.2d 621 (2005), which held that the mandatory nature of the federal

guidelines rendered them incompatiblewith theSixth Amendment’s guarantee to the

right to a jury trial. 

II. LEGAL ANALYSIS

A second or successive motion for § 2255 relief must be certified by the court

of appeals upon motion to that court by the applicant. 28 U.S.C. § 2244(b)(3) and §

2255; Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996); In re

Blackshire, 98 F.3d 1293 (11th Cir. 1996). A three-judge panel of the court of appeals,

§ 2244(b)(3)(B), may authorize the filing of a second or successive motion only if it

determines that the motion contains claims which rely on either:

(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.

28 U.S.C. § 2255. In re Dean, 375 F.3d 1287 (11th Cir. 2004). Defendant’s motion must

be dismissed, as the record does not reflect that he has either sought or obtained

authorization from the Eleventh Circuit Court of Appeals to file a second or

successive motion. See, In re Joshua, 224 F. 3d 1281, 1283 (11th Cir. 2000); Medina

v. Singletary, 960 F.Supp. 275 (M.D. Fla 1997).1 Furthermore, it is unlikely that he will

be able to obtain such certification, as Booker has not been held to be retroactive

to cases on collateral review. Varela v. United States, 400 F.3d 864, 866-868 (11th

Cir.), cert. denied, 126 S.Ct. 312, 163 L.Ed.2d 269 (2005); see also In re Anderson, 396

F.3d 1336 (11th Cir. 2005) (holding that only the Supreme Court can make a new rule

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Case No: 5:93cr5040/LAC; 5:06cv7/LAC/MD

retroactive on collateral review, and that it must do so explicitly); Bey v. United

States, 399 F.3d 1266, 1269 (10th Cir. 2005) (“Booker may not be applied retroactively

to second or successive habeas petitions.”)

Based on the foregoing, it is respectfully RECOMMENDED:

The motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. §

2255 (doc. 144) be summarily DISMISSED as successive. 

At Pensacola, Florida, this 20

th day of January, 2006.

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within ten

days after being served a copy thereof. A copy of objections shall be served upon the

magistrate judge and all other parties. Failure to object may limit the scope of appellate

review of factual findings. See 28 U.S.C. § 636; Local Rule 27(B); United States v. Roberts,

858 F.2d 698, 701 (11th Cir. 1988).

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