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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.: 3:01cr8/RV

 3:13cv451/RV/EMT

WALTER DEVON GRANDISON

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. 207). Rule 4(b) of the Rules Governing Section 2255

Proceedings 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 Walter Devon Grandison was originally sentenced to a term of 360-months

imprisonment in June of 2001 for various controlled substance offenses (see docs. 66, 68). His

conviction and sentence were affirmed on appeal in June of 2002 (doc. 98). Defendant filed a motion

to vacate pursuant to 28 U.S.C. § 2255 in April of 2005, which was summarily dismissed as untimely

(see docs. 101–105). He appealed, and after his request for a certificate of appealability was denied,

the appeal was dismissed (docs. 107, 112, 121, 122). 

In January of 2008 Defendant filed a “Motion for Reduction of Sentence” pursuant to 18 U.S.C.

§ 3582(c)(2) (doc. 124), which the Government moved to dismiss (doc. 126). The court denied

Defendant’s motion (doc. 130), Defendant appealed (doc. 132), and the Eleventh Circuit vacated the
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district court’s order and remanded the case for reconsideration (doc. 154). The district court then

granted Defendant’s motion and reduced his sentence from 360 to 324 months (doc. 156). Defendant

appealed that order (doc. 157), and the Eleventh Circuit affirmed (doc. 167). 

In November of 2011 Defendant filed a “Motion to Modify Term of Imprisonment Pursuant

to 18 U.S.C. § 3582(c)(2), Retroactive Amendment 750” (doc. 169). The district court denied the

motion after considering all of the submissions, having concluded that Defendant was ineligible for

a reduction (see docs. 170, 173, 174). It also issued a Statement of Reasons, which it subsequently

amended to correct a scrivener’s error in the applicable Guidelines range after Defendant filed a

“Motion Pursuant to Rule 59(e) of the Federal Rules of Civil Procedure to Alter or Amend Judgment”

(see docs. 175–78). 

In March of 2012 Defendant filed a “Motion Pursuant to 18 U.S.C. § 3582(c)(2) to Modify or

Reduce Term of Imprisonment” (doc. 179), which the court denied (doc. 181) after response from the

Government (doc. 180). Defendant appealed (doc. 182). While his appeal was pending, he filed a

“Motion for Post-Sentencing Rehabilitation Pursuant to 18 U.S.C. § 3661, and Pepper v. Untied

States” (doc. 187), which was denied on July 3, 2012, on the basis that there was no jurisdiction or

legal authority for re-sentencing (doc. 188). On July 27, 2012, the Eleventh Circuit vacated the

district court’s order (doc. 181) denying Defendant’s § 3582 motion (doc. 179) and remanded for

reconsideration (doc. 190). Upon reconsideration on July 31, 2012, the district court issued an

amended order in which it reduced Defendant’s term of imprisonment from 324 to 270 months and

issued an amended statement of reasons (see docs. 191, 192). 

Defendant then filed a motion pursuant to Rule 60(b)(6) (doc. 193). In this motion, he

contended that the court should reexamine the order entered on July 3, 2012, denying Defendant’s

motion for reduction of sentence based on post-sentencing rehabilitation (id. at 1). Defendant also

argued that there were errors in the court’s calculations that affected its order of July 31, 2012,

regarding his § 3582 motion (id. at 3–6). Defendant’s Rule 60(b) motion was denied (doc. 194), and

he appealed (doc. 195). 

While that appeal was pending, Defendant filed a motion to vacate pursuant to 28 U.S.C.

§ 2255 in which he challenged the district court’s order issued July 31, 2012 (see doc. 199 at 1; doc.

200 at 2). Because the pending appeal potentially affected the district court’s orders of both July 3,

Case Nos.: 3:01cr8/RV; 3:13cv451/RV/EMT
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2012 (doc. 188) and July 31, 2012 (doc. 191), the motion was dismissed without prejudice to its

reassertion, if appropriate, upon the conclusion of his appeal (docs. 201, 204). Defendant’s appeal

was dismissed on January 31, 2013 for want of prosecution (doc. 206), and Defendant thereafter filed

the instant motion to vacate (doc. 207). Defendant now raises three grounds for relief, each relating

to the application of the career offender guidelines provision to his case.

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

defendant 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 F.

App’x 409 (11th Cir. 2010). However, “second or successive” is a term of art, and under certain

circumstances, what facially appears to be a second or successive application may not be. See

Magwood v. Patterson, 130 S. Ct. 2788, 2794 (2010); Slack v. McDaniel, 529 U.S. 473, 486 (2000). 

Habeas petitions challenging the constitutionality of re-sentencing proceedings are not successive to

petitions that challenge the underlying conviction and original sentence. Id. (citation omitted). 

Otherwise stated, a petition that challenges a criminal judgment other than the one attacked in an

earlier petition is not successive. Id. (citation omitted); see also Panetti v. Quarterman, 551 U.S. 930

(2007); Stewart v. United States, 646 F.3d 856, 859–60 (11th Cir. 2011). 

Through Defendant’s motion, he challenges the district court’s Amended Order dated July 31,

2012 (doc. 191). The lone issue raised in that order was the effect of U.S.S.G. Amendment 750 on

Defendant’s sentence (see doc. 179).1 Thus, to the extent the instant motion goes beyond the scope of

that order to challenge earlier rulings or decisions, it is successive, untimely, or both.

In Defendant’s first ground for relief, he claims that the district court lacked jurisdiction to

base his sentence on the enhancement information as filed (doc. 207 at 9), and he refers to excerpts

from the transcript from his original sentencing proceeding in 2001 (id. at 24–28). The Government’s

Notice of Enhancement listed four prior qualifying convictions, three involving crimes of violence and

one involving a controlled substance offense (doc. 40). After some discussion between the court and

counsel at sentencing, the Government stated that the prior felony drug conviction listed in paragraph

1

 Defendant’s sentence was previously reduced pursuant to Amendment 706 in June of 2009

from 360 months to 324 months (see docs. 124, 156).

Case Nos.: 3:01cr8/RV; 3:13cv451/RV/EMT
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3 of its notice was appropriate for enhancement, but that it was “withdrawing” the others, as they

seemed to be misdemeanors rather than felonies (doc. 207 at 27). Defendant did not contest this

felony drug conviction (see doc. 98 at 7). Thus, as was found by the Eleventh Circuit, enhanced

penalties under § 841(b)(1)(C) were proper (id.). Even if Defendant’s claim is not considered to be

successive, Defendant is not entitled to relief as the propriety of the application of the enhanced

penalties has previously been decided.

In grounds two and three, Defendant contends that he is factually and legally innocent of career

offender treatment as applied to him in the § 3582(c)(2) order [doc. 192] and that he is entitled to resentencing where he can raise these arguments (doc. 207 at 10, 12). Based on the Government’s

withdrawal of three of the four felony convictions noted in its enhancement, it would appear that

Defendant had only one prior conviction that would have qualified him as a career offender pursuant

to § 4B1.1. The district court did not need to reach this issue because, as noted by the probation

officer at sentencing, Defendant’s base offense level of 38 was higher than the career offender

guideline of 37, and thus the career offender guideline would have no impact on Defendant’s sentence

(see doc. 207 at 25). The same was true at re-sentencing. In the court’s “Order Regarding Motion

for Sentence Reduction Pursuant to 18 U.S.C. § 3582(c)(2),” Defendant’s recalculated offense level

of 36 pursuant to Amendment 706 was higher than the applicable career offender offense level of 34.2

Thus, § 4B1.1 also had no bearing upon Defendant’s re-sentencing in 2009 (doc. 156). In 2012,

Defendant’s amended offense level after the application of Amendment 750 was 34 (docs. 190, 192). 

This reduction in the offense level was similarly unaffected by the application of the career offender

provision because, even if the provision was applicable, Defendant’s offense level pursuant to §

4B1.1 would have been the same as that calculated pursuant to § 2D1.1 of the guidelines. Defendant’s

claims are thus based on the erroneous premise that he was sentenced in accordance with § 4B1.1 of

the guidelines. Therefore, even if Defendant’s claim is not considered to be successive, Defendant

is not entitled to relief. 

Certificate of Appealability

2

 The court noted that Defendant’s career offender offense level would be 34 instead of 37

pursuant to the Eleventh Circuit’s order on direct appeal (doc. 156; see also doc. 98). There was no

mention of whether Defendant had a sufficient number of qualifying predicate offenses.

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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. § 2255 Rule 11(b).

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, 120 S. Ct. 1595,

1603–04, 146 L. Ed. 2d 542 (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.

Rule 11(a) also provides: “[b]efore 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. The motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (doc.

207) be SUMMARILY DISMISSED. 

2. No certificate of appealability be issued.

At Pensacola, Florida, this 13th day of August 2013.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

Case Nos.: 3:01cr8/RV; 3:13cv451/RV/EMT
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NOTICE TO THE PARTIES

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

fourteen days after being served a copy hereof. 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 any

objections shall be served upon any 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.: 3:01cr8/RV; 3:13cv451/RV/EMT