Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

vs. Case No: 3:01CR82/LAC

3:06cv28/LAC/MD

DANIEL JUAREZ

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. 184). Rule 4(b) of the Rules

Governing Section 2255 Proceedings provides in part that “[i]f it plainly appears

from the face of the motion and any annexed exhibits and the prior proceedings in

the case that the movant is not entitled to relief in the district court, the judge shall

make an order for its summary dismissal and cause the movant to be notified.” After

a review of the record, it is the opinion of the undersigned that the motion is

successive and that it should be summarily dismissed.

I. BACKGROUND

Defendant was convicted after a jury trial to controlled substance offenses

and was sentenced to a term of 328 months imprisonment. He did not appeal, but

he filed a motion to vacate, set aside or correct sentence on March 16, 2005 (doc.

153) which was denied on May 2, 2005. (Doc. 154, 156 & 157). Although an appeal

on a motion for reconsideration of the district court’s ruling is still pending, he filed

the motion currently before the court on January 18, 2006. This motion is

Case 3:01-cr-00082-LC-MD Document 185 Filed 01/20/06 Page 1 of 4
Page 2 of 4

1

The court also notes that the defendant’s motion is facially untimely. Defendant’s prior § 2255 motion

was dismissed as untimely, and despite defendant’s attempt to couch his claim s as “jurisdictional” issues, so

that he may escape the tim e bar, this is not an accurate characterization. And even if it were, this does not

allow him to circum vent the ban on second or successive motions absent authorization from the appropriate

appellate court. 

Case No: 3:01cr82/LAC; 3:06cv28/LAC/MD

defendant’s second such motion. In the instant motion, defendant again seeks relief

pursuant to the Supreme Court’s decision in United States v. Booker, 543 U.S. 220,

125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which held that the mandatory nature of the

federal guidelines rendered them incompatible with the Sixth Amendment’s

guarantee to the right to a jury trial. 

II. LEGAL ANALYSIS

A second or successive motion for § 2255 relief must be certified by the court

of appeals upon motion to that court by the applicant. 28 U.S.C. § 2244(b)(3) and §

2255; Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996); In re

Blackshire, 98 F.3d 1293 (11th Cir. 1996). A three-judge panel of the court of appeals,

§ 2244(b)(3)(B), may authorize the filing of a second or successive motion only if it

determines that the motion contains claims which rely on either:

(1) newly discovered evidence that, if proven and viewed in the light of

the evidence as a whole, would be sufficient to establish by clear and

convincing evidence that no reasonable factfinder would have found

the movant 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. In re Dean, 375 F.3d 1287 (11th Cir. 2004). Defendant’s motion must

be dismissed, as the record does not reflect that he has either sought or obtained

authorization from the Eleventh Circuit Court of Appeals to file a second or

successive motion. See, In re Joshua, 224 F. 3d 1281, 1283 (11th Cir. 2000); Medina

v. Singletary, 960 F.Supp. 275 (M.D. Fla 1997).1 Furthermore, it is unlikely that he will

be able to obtain such certification, as Booker has not been held to be retroactive

to cases on collateral review. Varela v. United States, 400 F.3d 864, 866-868 (11th

Case 3:01-cr-00082-LC-MD Document 185 Filed 01/20/06 Page 2 of 4
Page 3 of 4

Case No: 3:01cr82/LAC; 3:06cv28/LAC/MD

Cir.), cert. denied, 126 S.Ct. 312, 163 L.Ed.2d 269 (2005); see also In re Anderson, 396

F.3d 1336 (11th Cir. 2005) (holding that only the Supreme Court can make a new rule

retroactive on collateral review, and that it must do so explicitly); Bey v. United

States, 399 F.3d 1266, 1269 (10th Cir. 2005) (“Booker may not be applied retroactively

to second or successive habeas petitions.”). 

Finally, it is well established that the district court lacks jurisdiction to

consider and rule on a § 2255 motion during the pendency of the direct appeal.

United States v. Dunham, 240 F.3d 1328, 1329-30 (11th Cir. 2001); see also United

States v. Khoury, 901 F.2d 975, 976 n.20 (11th Cir. 1990); Welsh v. United States, 404

F.2d 333 (5th Cir. 1968) (“[a] motion to vacate sentence under 28 U.S.C. § 2255 will

not be entertained during the pendency of a direct appeal, inasmuch as the

disposition of the appeal may render the motion moot.”) The same logic applies to

the instant situation, where a favorable disposition on appeal could render this

motion moot.

Based on the foregoing, it is respectfully RECOMMENDED:

The motion to vacate, set aside or correct sentence pursuant to 18 U.S.C. §

2255 (doc. 184) be summarily DISMISSED. 

At Pensacola, Florida, this 20

th day of January, 2006.

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

Case 3:01-cr-00082-LC-MD Document 185 Filed 01/20/06 Page 3 of 4
Page 4 of 4

Case No: 3:01cr82/LAC; 3:06cv28/LAC/MD

NOTICE TO THE PARTIES

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

days after being served a copy thereof. A copy of objections shall be served upon the

magistrate judge and all other parties. Failure to object may limit the scope of appellate

review of factual findings. See 28 U.S.C. § 636; Local Rule 27(B); United States v. Roberts,

858 F.2d 698, 701 (11th Cir. 1988).

Case 3:01-cr-00082-LC-MD Document 185 Filed 01/20/06 Page 4 of 4