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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CEDRIC ROSE, §

Movant, §

§ No. 3:22-cv-00699-M (BT)

V. § No. 3:07-cr-00169-M-1 

§

UNITED STATES OF AMERICA, §

Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Movant Cedric Rose filed a pro se letter, received on March 25, 2022, 

addressed to the District Court. (ECF No. 2.) For the following reasons, the 

Court should construe the letter as a successive motion to vacate, set-aside, 

or correct sentence under 28 U.S.C. § 2255 and transfer the § 2255 motion 

to the Fifth Circuit Court of Appeals as successive.

I.

Following a bench trial conducted on May 5, 2008, the Court found 

Rose guilty of (1) possession with intent to distribute a controlled substance, 

in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii) (count one); (2) 

possession of a firearm in furtherance of a drug trafficking crime, in violation 

of 18 U.S.C. § 924(c)(1)(A) (count two); and (3) being a felon in possession 

of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1) (counts 

three and four). On August 13, 2008, the Court sentenced Rose to a total 

aggregate term of life imprisonment. Rose appealed his case to the Fifth 

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Circuit, and on November 6, 2009, the Fifth Circuit affirmed his conviction 

and life sentence. Thereafter, Rose filed four motions under 28 U.S.C. § 2255

to vacate, set-aside, or correct his sentence. See Rose v. United States, No. 

3:11-cv-417-P; Rose v. United States, No. 3:14-cv-298-P, Rose v. United 

States, No. 3:16-cv-2232-M-BT; Rose v. United States, No. 3:21-cv-1273-MBT. 

On March 25, 2022, the Court received Rose’s letter, in which he 

states that his “arraignment was unconstitutional.” Mot. 1 (ECF No. 2). He 

further asserts, “I am doing (time) for somebody else[‘s] drugs,” and “I am 

wrongfully locked-up.” Id. 

Section 2255 provides four grounds that justify relief for federal 

prisoners who challenge the imposition or length of their sentence:

(1) the sentence was imposed in violation of the 

Constitution or laws of the United States;

(2) the court was without jurisdiction to impose such 

sentence;

(3) the sentence was in excess of the maximum 

authorized by law; or,

(4) the sentence is otherwise subject to collateral 

attack.

28 U.S.C. § 2255(a). 

In his letter, Rose appears to attack his conviction and sentence. 

Consequently, the Court should construe Rose’s letter as a motion under § 

2255. 

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II. 

The Antiterrorism and Effective Death Penalty Act of 1996 limits the 

circumstances under which a federal prisoner may file a second or successive 

motion for post-conviction relief. ANTITERRORISM AND EFFECTIVE DEATH 

PENALTY ACT, Publ. L. 104-132, 110 Stat. 1214 (1996). A defendant must show 

that the successive motion is based on: (1) newly discovered evidence that, 

if proven and viewed in light of the evidence as a whole, would be sufficient 

to establish by clear and convincing evidence that no reasonable factfinder 

would have found him 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(h). This 

determination must be made by a three-judge panel of the court of appeals 

before defendant files his motion in district court. 28 U.S.C. §§ 2244(b)(3)

and 2255(h). 

Rose has previously filed other motions to vacate, set-aside, or correct 

his sentence. The Court received Rose’s first § 2255 motion on March 1, 2011. 

See Rose v. United States, No. 3:11-cv-417-P. On August 22, 2012, the Court 

dismissed that motion with prejudice, entered judgment, and denied a 

certificate of appealability. 

Then, on January 24, 2014, the Court received Rose’s second § 2255 

motion. See Rose v. United States, No. 3:14-cv-298-P. On January 28, 2014, 

the Court found the motion was successive, directed that it be transferred to 

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the Fifth Circuit Court of Appeals, denied a certificate of appealability, and 

entered judgment. On January 29, 2014, the Fifth Circuit denied Rose’s 

request for authorization to file a successive § 2255 motion. See In re: Cedric 

Rose, No. 14-10112 (5th Cir. 2014). 

On June 3, 2016, Rose, through appointed counsel, filed a third § 2255 

motion. See Rose v. United States, Case No. 3:16-cv-2232-M-BT. The same 

day, Rose filed a motion for authorization to file a successive § 2255 motion 

in the Fifth Circuit. See In re Cedric Rose, No. 16-10718 (5th Cir.). On August 

1, 2016, the Fifth Circuit granted Rose’s motion for authorization with 

respect to his claim under the Armed Career Criminal Act (ACCA) and 

transferred the case to this Court for further proceedings. On January 20, 

2022, the undersigned magistrate judge entered findings and conclusions, 

recommending that the Court grant the Government’s motion to dismiss 

and dismiss Rose’s successive § 2255 motion, as amended. On February 17, 

2022, Rose’s appointed counsel filed objections, and the case remains 

pending. 

On May 27, 2021, Rose filed his fourth § 2255 motion. See Rose v. 

United States, No. 3:21-cv-1273-M-BT. On July 12, 2021, the Court found 

that the motion was successive, directed that it be transferred to the Fifth 

Circuit Court of Appeals, and entered judgment. On October 8, 2021, the 

Fifth Circuit denied Rose’s motion to file a successive § 2255 motion. 

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Rose fails to demonstrate that he obtained permission from the Fifth 

Circuit to file a successive § 2255 motion. Therefore, the Court should 

TRANSFER his March 25, 2022 letter motion to the Fifth Circuit pursuant 

to In re Epps, 127 F.3d 364, 365 (5th Cir. 1997).

III.

For the foregoing reasons, the undersigned recommends that the 

Court construe Rose’s March 25, 2022 letter as a successive motion to 

vacate, set-aside, or correct sentence under 28 U.S.C. § 2255 and 

TRANSFER the § 2255 motion to the Fifth Circuit pursuant to In re Epps, 

127 F.3d 364, 365 (5th Cir. 1997).

Signed March 29, 2022.

___________________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all 

parties in the manner provided by law. Any party who objects to any part of 

this report and recommendation must file specific written objections within 

14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific 

finding or recommendation to which objection is made, state the basis for 

the objection, and specify the place in the magistrate judge's report and 

recommendation where the disputed determination is found. An objection 

that merely incorporates by reference or refers to the briefing before the 

magistrate judge is not specific. Failure to file specific written objections will 

bar the aggrieved party from appealing the factual findings and legal 

conclusions of the magistrate judge that are accepted or adopted by the 

district court, except upon grounds of plain error. See Douglass v. United 

Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).

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