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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:01cr14-RH

vs. Case No. 4:05cv139-RH/WCS

ALFRED FOOTMAN,

Defendant.

 /

REPORT AND RECOMMENDATION ON MOTION FOR SPECIFIC PERFORMANCE

This cause is before the court on Defendant's motion for specific performance

and memorandum of law. Doc. 78. Defendant asserts that his plea agreement was to

provide substantial assistance to the Government through the assistance of his son. He

kept up his part of the agreement but, it is argued, the Government did not. Defendant

asserts that under United States v. Booker, U.S. , 125 S.Ct. 738, 160 L.Ed.2d 621

(January 12, 2005), this court now has the power to rule any way it wants to under the

Sentencing Guidelines, and asks the court to grant relief under the totality of the facts. 

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Case Nos. 4:01cr14-RH and 4:05cv139-RH/WCS 

Defendant previously sought relief pursuant to 28 U.S.C. § 2255. Doc. 57. The

motion was denied with prejudice. Docs. 67, 69, and 70 (report and recommendation,

order, and judgment entered on May 18, 2004). Reconsideration was denied. Doc. 72. 

Defendant then filed a motion for relief judgment pursuant to Fed.R.Civ.P. 60(b). 

Doc. 73. This court found it lacked jurisdiction, as the motion was essentially a second

or successive § 2255 motion which had not been authorized by the court of appeals. 

Docs. 74, 76, and 77 (report and recommendation, order, and judgment entered on

September 9, 2004). The court relied, inter alia, on Gonzalez v. Secretary for Dept. Of

Corrections, 366 F.3d 1253 (11th Cir. 2004), pet. for cert. granted in part, U.S. ,

125 S.Ct. 961; cert. denied, U.S. , 125 S.Ct. 965 (2005). Doc. 74 (incorporated

herein by reference), pp. 2-3. 

As with the purported Rule 60(b) motion, the court should construe the instant

motion as an attempt to file a second or successive motion under § 2255. See

Gonzalez, 366 F.3d at 1277, n. 10 (the limitations on recharacterizing a document as a

first § 2255 motion do not extend beyond initial filings, or allow movant to evade the

restrictions on second or successive motions). Defendant has not obtained

authorization from the court of appeals, and this court may not consider his second or

successive motion. § 2255 (referencing § 2244); § 2255 Rule 9 (party must obtain

authorization from court of appeals before presenting a second or successive motion). 

See also In re Anderson, 396 F.3d 1336, 1339-40 (11th Cir. 2005) (denying leave to file

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1

 Defendant's Rule 60(b) motion relied on Blakely and Apprendi v. New Jersey,

530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Doc. 74, pp. 1, 3, and n. 2. 

Case Nos. 4:01cr14-RH and 4:05cv139-RH/WCS 

second or successive § 2255 motion raising a claim under Booker and Blakely v.

Washington, 542 U.S. , 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)).1

It is therefore respectfully RECOMMENDED that Defendant's motion for specific

performance (doc. 78) be SUMMARILY DISMISSED.

IN CHAMBERS at Tallahassee, Florida, on May 18, 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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