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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

vs. Case Nos.: 3:01cr31/RV/EMT 

3:14cv278/RV/EMT

RICKY GENE MINOR

_______________________________________/

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 (doc. 103). 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.

BACKGROUND and ANALYSIS

Defendant was sentenced to a term of life imprisonment in August of 2001 after he pleaded

guilty to manufacturing methamphetamine (docs. 1, 21, 26). He did not appeal. In April of 2002,

the district court denied Defendant’s “Extraordinary Motion to Vacate, Set aside Sentence, Dismiss

Indictment, and Allow Withdrawl (sic) of Guilty Plea” (docs. 33, 36). Defendant unsuccessfully

appealed (doc. 50). In August of 2002, Defendant then challenged his conviction by means of a

motion to vacate pursuant to 28 U.S.C. § 2255 (see docs. 52, 57). The amended motion was denied

in 2003 over Defendant’s objection (see docs. 75, 78, 79). The Eleventh Circuit Court of Appeals

denied Defendant’s request for a certificate of appealability and dismissed the appeal (doc. 99). The

record also reflects that in 2006, the Eleventh Circuit denied Defendant’s application for leave to

file a second or successive § 2255 motion (doc. 99). Defendant has now filed another motion to

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vacate in which he claims he is entitled to relief pursuant to the recent Supreme Court decision in

Alleyne v. United States, 133 S. Ct. 2151 (2013). Defendant acknowledges that the case has not

been held to be retroactively applicable by the Supreme Court, but indicates that he is filing the

instant motion to preserve any future litigation that might arise if the decision is deemed to be

retroactive (doc. 103 at 4). 

Even if Alleyne were retroactively applicable on collateral review, this court does not have

jurisdiction to entertain Defendant’s motion. As Defendant is well aware, before a second or

successive application for § 2255 relief is filed in the district court, the litigant must typically 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). 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

motion.1 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 without

prejudice.

CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Section 2255 Proceedings 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), Rules Governing Section 2255

Proceedings.

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

constitutional right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483–84 (2000)

1

 This authorization would be required even in a situation in which 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). 

Case Nos: 3:01cr31/RV/EMT; 3:14cv278/RV/EMT

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(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 (doc. 103), 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 23rd day of June 2014.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

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: 3:01cr31/RV/EMT; 3:14cv278/RV/EMT

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