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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 5:98-cr-06-LC-GRJ

DONALD ALLEN

_____________________________/

REPORT AND RECOMMENDATION

This case is before the Court on Doc. 244, Defendant’s motion for a certificate of

appealability, and Doc. 245, Defendant’s motion for leave to appeal in forma pauperis. 

The motions have been referred to the undersigned for recommended disposition. For

the following reasons, the undersigned recommends that the motions be DENIED. 

Defendant was convicted at trial of conspiracy to possess with intent to distribute

cocaine base, possession with intent to distribute cocaine base, and using and carrying

a firearm during and in relation to a drug trafficking offense. (See Docs. 6, 76). He was

sentenced to life imprisonment to be followed by a consecutive term of 60 months.

(Doc. 88). His conviction and sentence were affirmed on direct appeal. (Doc. 122).

His subsequent motion filed pursuant to 28 U.S.C. § 2255 was denied. (Docs. 164,

166). Among other issues raised in that motion, Defendant contended that state court

convictions used to enhance his sentence were obtained in violation of his right to

counsel. See id.

Defendant subsequently filed a “Motion for Review of a Sentence Pursuant to 18

U.S.C. § 3742(a)(1) and/or Motion to Vacate, Set Aside, Or Correct a Sentence

Pursuant to 28 U.S.C. § 2255 and/or Motion for Reconsideration Pursuant to Rule

60(b)(6) of Federal Rules of Civil Procedure.” (Doc. 178). As to that portion of the

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Defendant’s motion related to seeking relief pursuant to Rule 60(b), the Court found the

motion should be construed as one brought under § 2255, and that the motion was due

to be dismissed because Defendant had not obtained authorization from the Eleventh

Circuit Court of Appeals to file a second or successive motion. (Doc. 79.) The Court

also found Defendant’s motion to be untimely. (Id.)

Defendant filed another motion pursuant to Fed. R. Civ. P. 60(b), challenging the

enhancement of his sentence based upon one of his state court convictions which

Defendant contended was improper because he was represented by stand-in counsel

during his plea. Doc. 210. The Court found that the claims in the motion had

previously been raised by Defendant and rejected by the Court. (Doc. 212.) Defendant

appealed and sought a certificate of appealability (COA). The Court denied Defendant

a COA, and denied him leave to proceed as a pauper, finding that the appeal was not

taken in good faith. (Docs. 218, 222.) The Eleventh Circuit denied Defendant a COA. 

(Doc. 225.)

Defendant filed another Rule 60(b) motion, again challenging on the merits the

Court’s denial of his § 2255 motion. Defendant again argued that his sentence was

improperly enhanced on the basis of a state court conviction because he was

represented by stand-in counsel during his plea in the state case. (Doc. 233.) The

Court denied the motion, finding that Defendant’s claims were not properly raised in a

Rule 60(b) motion and that Defendant must obtain authorization from the Eleventh

Circuit to file a second or successive motion under § 2255. (Doc. 234.)

Defendant then filed a “motion to correct record” pursuant to Fed. R. Crim. P.

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36 , contending that his PSR incorrectly described one of his prior state convictions as

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“possession with intent” rather than “simple possession.” (Doc. 235.) Defendant also

filed a motion for reconsideration of the Court’s order denying his latest Rule 60(b)

motion. (Doc. 236.) The Court summarily denied both motions. (Docs. 239, 240.)

Defendant filed a notice of appeal stating that he was appealing “the final

judgment denying his Fed. R. Crim. P. 36" motion. (Doc. 241.) Defendant also filed a

motion for a COA with respect to the denial of his latest Rule 60(b) motion, and a

motion for leave to proceed as a pauper. (Docs. 242, 245.)

An appeal of the denial of a Rule 60(b) motion requires a certificate of

appealability. Williams v. Chatman, 510 F.3d 1290, 1294 (11th Cir. 2007); Gonzalez v.

Sec’y for Dept. of Corrections, 366 F.3d 1253, 1263 (11th Cir. 2004). A certificate of

appealability may issue “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253 (c)(2). The certificate of appealabilty

is a threshold requirement that filters from the appellate process cases in which the

possibility of reversal is “too unlikely to justify the cost for the system of a full appellate

examination.” Gonzalez, 366 F.3d at 1264. Thus, a certificate of appealability should

not issue in the appeal from the denial of a Rule 60(b) motion unless Defendant shows,

at a minimum, that it is debatable among jurists of reason whether the district court

abused its discretion in denying the motion. See Mobley v. Head, 306 F.3d 1096, 1097

(11th Cir. 2002). 

In this case, issuance of a COA is not warranted because the record, as

Fed. R. Crim. P. 36 applies to “clerical errors” in the judgment or record. 1

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summarized above, establishes that it is not debatable among jurists of reason whether

the Court abused its discretion in denying the motion. Defendant may seek a COA

from the Eleventh Circuit pursuant to Fed. R. App. P. Rule 22(b)(1) and Rule 22-1(b) of

the Eleventh Circuit Rules. 

Because the Court previously determined that Defendant is indigent, Defendant

does not require further authorization to proceed in forma pauperis on appeal, unless

the Court certifies that the appeal is not taken in good faith. See Fed. R. App. P.

24(a)(3). Defendant’s appeal is not taken in good faith, inasmuch as he has not

identified any nonfrivolous issue for appeal. See Fed. R. App. P. 24(a)(1) (party seeking

leave to appeal in forma pauperis must file an affidavit claiming entitlement to redress

and stating issues the party intends to present on appeal). The Court’s previous orders

denying Defendant’s successive requests for relief, summarized above, establish that

Defendant is seeking to relitigate claims that the Court has previously rejected. 

Defendant has failed to identify any arguable basis for appealing the Court’s

determination that relief under Rule 60(b) or Fed. R. Crim. P. 36 is not warranted. See

Bilal v. Driver, 251 F.3d 1346, 1349 (11 Cir. 2001) (IFP action is frivolous, and thus not th

brought in good faith, if it is “without arguable merit either in law or fact.”). 

In light of the foregoing, it is respectfully RECOMMENDED that the motions for

COA (Doc. 244) and for leave to appeal as a pauper (Doc. 245) be DENIED.

IN CHAMBERS at Gainesville, Florida, this 11 day of September 2014. th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

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NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written objections to

the proposed findings and recommendations within 14 days after being served with a

copy of this report and recommendation. A party may respond to another party’s

objections within 14 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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