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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA

vs. Case Nos.: 4:96cr36/MP 

4:13cv401/MP/CAS

EDDIE LEE GORDON

_______________________________________/

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 and supporting memorandum of law (docs. 223, 224). Rule

4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts provides

in part that “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior

proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and

direct the clerk to notify the moving party.” After a review of the record, it is the opinion of the

undersigned that the court is without jurisdiction to entertain Defendant’s motion and that it should

be summarily dismissed.1

BACKGROUND and ANALYSIS

Defendant was sentenced to a term of 360 months imprisonment after his conviction of

controlled substance offenses (doc. 34). His conviction and sentence were affirmed on appeal (doc.

66). He then challenged his conviction by means of a motion to vacate pursuant to 28 U.S.C. § 2255

that was subsequently amended (docs. 70, 75). This motion was denied in 2001 (see docs. 102,

110). Defendant has now filed another motion to vacate in which he seeks relief pursuant to the

recent Supreme Court decision in Alleyne v. United States, 133 S.Ct. 2151 (2013), which he

1 Defendant’s motion is not on the appropriate court form as required by Northen District of Florida Local Rule

5.1(J)(2). If summary dismissal were not warranted in this case, Defendant would be required to file an amended motion

on the court form as required by this rule before his motion would be considered on the merits. 
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contends announced a new substantive rule that is retroactively applicable to his case (docs. 223,

224). 

This court does not have jurisdiction to entertain Defendant’s motion. Before a second or

successive application for § 2255 relief is filed in the district court, the litigant must move in the

appropriate court of appeals for an order authorizing the district court to consider the application. 

28 U.S.C. § 2244(b)(3) and § 2255(h); Felker v. Turpin, 518 U.S. 651 (1996); United States v. Holt,

417 F.3d 1172, 1175 (11th Cir. 2005); Carter v. United States, 405 Fed. App’x 409 (11th Cir. 2010). 

This authorization is required even when, as here, a defendant asserts that his motion is based on the

existence of 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(h)(2). Defendant has not

obtained authorization from the Eleventh Circuit Court of Appeals to file a successive motion, and

therefore, the instant motion to vacate must be dismissed.

CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United States District

Court (“§ 2255 Rules”) provides that “[t]he district court must issue or deny a certificate of

appealability when it enters a final order adverse to the applicant,” and if a certificate is issued “the

court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. §

2253(c)(2).” A timely notice of appeal must still be filed, even if the court issues a certificate of

appealability. Rule 11(b), § 2255 Rules.

After review of the record, the court finds no substantial showing of the denial of a

constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483–84 (2000) (explaining how

to satisfy this showing) (citation omitted). Therefore, it is also recommended that the court deny a

certificate of appealability in its final order.

The second sentence of Rule 11(a) provides: “Before entering the final order, the court may

direct the parties to submit arguments on whether a certificate should issue.” If there is an objection

to this recommendation by either party, that party may bring this argument to the attention of the

district judge in the objections permitted to this report and recommendation.

Case Nos: 4:96cr36/MP; 4:13cv401/MP/CAS
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Accordingly, it is respectfully RECOMMENDED:

1. Defendant’s motion to vacate pursuant to 28 U.S.C. § 2255 (doc. 223), be

SUMMARILY DISMISSED, as this court lacks jurisdiction to consider a successive motion absent

authorization from the Eleventh Circuit.

2. A certificate of appealability be DENIED.

At Pensacola, Florida, this 17th day of July, 2013.

/s/ Charles A. Stampelos 

CHARLES A. STAMPELOS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

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

fourteen (14) days after being served a copy thereof. Any different deadline that may appear

on the electronic docket is for the court’s internal use only. A copy of objections shall be

served upon all other parties. Failure to object may limit the scope of appellate review of

factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir.

1988).

Case Nos: 4:96cr36/MP; 4:13cv401/MP/CAS