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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA

vs. Case Nos.: 1:96cr20/MP/GRJ

 1:16cv47/MP/GRJ

JOHN CALVIN EVERETT

_______________________________________/

REPORT AND RECOMMENDATION

This matter is before the court upon Defendant’s “True Second

Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct the

Petitioner’s Sentence by a Person in Federal Custody.” (ECF No. 642.) 

The motion is not on the proper court form. Defendant, however, will not

be required to amend. 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, the Court concludes that it does not have

jurisdiction to entertain Defendant’s motion and that the motion should be

summarily dismissed. Alternatively, if the motion is construed as one

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pursuant to 18 U.S.C. § 3582, it should be denied because it is without

merit. 

BACKGROUND and ANALYSIS

Defendant was sentenced to a term of 360 months imprisonment on

November 21, 1997 after a jury convicted him of conspiracy to possess

with intent to distribute cocaine and cocaine base. (ECF Nos. 183, 211.) 

His conviction and sentence were affirmed on appeal. (ECF No. 275.) 

Defendant then filed a motion to vacate under 28 U.S.C. § 2255, which

was denied over Defendant’s objection. (ECF Nos. 278, 361, 372, 375.) 

Defendant filed motions for reconsideration and to join or adopt his codefendant’s § 2255 motion, as well as a notice of appeal. (ECF Nos. 380,

392, 393.) The motions were denied (ECF No. 413), as were numerous

motions for reconsideration. (See ECF Nos. 414, 415, 418, 420, 421, 428,

430, 432, 455, 456.) 

The Eleventh Circuit affirmed the denial of Defendant’s § 2255

motion and denied his request for leave to file a second or successive

motion. (ECF No. 417, 438.) Defendant’s motion for modification and

correction of sentence was denied, as well as his request for

reconsideration thereof. (ECF Nos. 439, 441, 447, 451–456, 461, 463.) 

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In 2007, Defendant filed two motions to vacate judgment pursuant to

Rule 60(b), both of which were denied. (ECF Nos. 464, 465, 469, 471. ) 1

Defendant then filed an unsuccessful motion to reduce his sentence due to

the retroactive applications of sentencing guidelines in 2008. (See ECF

Nos. 488, 495, 498, 501, 507, 509, 521.)

 In 2010, Defendant unsuccessfully pursued a motion for leave to file

a motion pursuant to Rule 60(b)(6). (ECF Nos. 538--545, 548–551.) 

 In 2011, he sought relief pursuant to Rule 59(e). (ECF Nos.

552–559, 561, 563–566, 568, 581, 583, 586.) A request for a sentence

reduction was denied in 2012. (ECF Nos. 569–574, 576-580.) In 2014

Defendant sought relief pursuant to Rule 60(b)(4). (ECF Nos. 607, 608.)

Defendant’s motion for retroactive application of sentencing

guidelines to crack offenses was granted in March of 2015 (ECF Nos. 609,

610), but Defendant, nonetheless, filed a number of motions for

reconsideration, all of which were denied. (ECF Nos. 611, 612, 615, 620,

624, 626–630.). Defendant appealed the denial of the motion for

The clerk was directed not to accept for filing any further motions from Defendant 1

unless they allege imminent threat of serious physical harm. 

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reconsideration, and his appeal was dismissed and then later reinstated.

(ECF Nos. 631, 637, 640.) 

Defendant has now filed a motion titled “A True Second Motion under

28 U.S.C. § 2255 to Vacate, Set Aside or Correct the Petitioner’s Sentence

by a Person in Federal Custody.” (ECF No. 642.) Defendant asserts that

the claims raised in this motion did not exist or ripen until after the

conclusion of his first § 2255 motion. Defendant says that the district court

failed to take into account that Amendment 742 to the Sentencing

Guidelines eliminated former § 4A1.1(e), the “recency points” provision to

the Guidelines, which resulted in an incorrect guidelines calculation at his

2015 “resentencing.” Section 4A1.1(e), as it formerly existed, allowed for

the addition of up to two additional criminal history points if a defendant’s

offense conduct took place within two years from his release from

imprisonment. Defendant argues that without the two criminal history

points, his criminal history score would drop from 14 to 12 points. Because

his criminal history score would be 12 Defendant says that he would then

have a criminal history category of V, rather than VI and, therefore, his new

guidelines range would be 292 to 365 months, rather than 324 to 405

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months. (ECF No. 642 at 3.) Defendant requests that the Court vacate his

sentence and resentence him at the low end of the new guidelines range. 

Among the many problems with Defendant’s motion is that the Court

does not have jurisdiction to consider § 2255 relief. Proceedings under §

3582 do not constitute de novo re-sentencing, because such proceedings

do not grant the court jurisdiction to consider extraneous resentencing

issues. See United States v. Bravo, 203 F.3d 778, 782 (11th Cir. 2000);

United States v. Moreno, 421 F.3d 1217, 1220 (11 Cir.2005); United

th

States v. Cothran, 106 F.3d 1560, 1562 (11 Cir.1997). The Court does not th

re-examine the other sentencing determinations made at the original

sentencing. Cothran, 106 F.3d at 1562-63; Bravo, 203 F.3d at 781. 

Title 18 U.S.C. § 3582(b) expressly provides that “notwithstanding

that a sentence to imprisonment can subsequently be . . . [modified] . . . a

judgment of conviction that includes such a sentence constitutes a final

judgment for all other purposes.” As such, a § 3582 sentence modification

neither restarts the one year § 2255(f)(1) limitations period nor resets the

number of collateral attacks to zero. Therefore, this motion is Defendant’s

second § 2255 motion attacking his judgment and conviction in this case.

Before a second or successive application for § 2255 relief is filed in the

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district court, the litigant must typically file a motion 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). 

Defendant’s successive motion falls within the larger subset of cases for

which such authorization is required, as he is challenging the same

judgment he challenged in his initial §2255 motion. Defendant has not

obtained authorization from the Eleventh Circuit Court of Appeals to file a

successive motion and, therefore, the instant motion to vacate should be

dismissed without prejudice.

Even if the court were to construe Defendant’s motion as a motion

seeking relief pursuant to § 3582, he would not be entitled to relief. 

2

Amendment 742 is not enumerated as a retroactive amendment in §

1B1.10(c) of the Sentencing Guidelines. See U.S.S.G. § 1B1.10(c); United

States of America v. Gonzalez-Molina, 409 F. App’x 751 (5th Cir. 2011);

United States v. Rhodes, 531 F. App’x 279 (4th Cir. 2013); Scarboro v.

A pro se litigant’s allegations are entitled to the benefit of liberal construction.

2

See Haines v. Kerner, 404 U.S. 519, 520 (1972).

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United States, Case Nos. 11--61964-CIV, 10--60040-CR, 2012 WL

5271726, at *2 (S.D. Fla. Oct. 24, 2012); cf. United States v. Vickers, Case

Nos. 5:09cr30/RS/CJK, 5:11cv253/RS/CJK, 2014 WL 1410452, at *6 (N.D.

Fla. Apr. 11, 2014)(denying 2255 relief based on counsel’s failure to argue

on appeal that Amendment 742, which had not yet become effective,

applied to defendant’s case). 

Defendant was correctly sentenced in accordance with the law in

existence at the time, and a subsequent amendment to the Guidelines,

which is not retroactive, does not entitle him to re-sentencing. GonzalezMolina; Rhodes. Therefore, even if Defendant’s motion is construed as

something other than a § 2255 motion, it is due to be denied.

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

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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.

Accordingly, it is respectfully RECOMMENDED:

1. Defendant’s motion to vacate pursuant to 28 U.S.C. § 2255

(ECF No. 642), should be SUMMARILY DISMISSED, as this court lacks

jurisdiction to consider a successive motion absent authorization from the

Eleventh Circuit, or alternatively, Defendant’s motion should be DENIED.

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2. A certificate of appealability should be DENIED.

IN CHAMBERS at Gainesville, Florida, this 3 day of March, 2016. rd

s/ Gary R. Jones

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

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, and does not control. A copy of objections shall be served upon all other

parties. If a party fails to object to the magistrate judge's findings or

recommendations as to any particular claim or issue contained in a report and

recommendation, that party waives the right to challenge on appeal the district

court's order based on the unobjected-to factual and legal conclusions. See 11th

Cir. Rule 3-1; 28 U.S.C. § 636.

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