IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, ) 

 ) 

 Respondent, ) 

 ) CRIMINAL ACTION NO. 08-0067-CG-N 

v. ) 

 ) CIVIL ACTION NO. 11-0216-CG-N 

PAUL ANTONIO BURKE, ) 

 ) 

 Defendant/Petitioner, ) 

REPORT AND RECOMMENDATION

 Petitioner Paul Antonio Burke filed a Motion to Vacate, Aside or Correct Sentence 

pursuant to 28 U.S.C. § 2255 (doc. 136) on May 29, 2012. This matter has been referred to the 

undersigned pursuant to 28 U.S.C. 636 and Local Rule 72.2(c)(4). Upon consideration of the 

motion, it is the recommendation of the undersigned that the petition be dismissed. 

Petitioner initially filed a motion to set aside or vacate his conviction on April 27, 2011. 

(Doc. 88) In response the government moved to dismiss on the grounds, in sum, that the petition 

was untimely and this court lacked jurisdiction over the claims. (Doc. 91) After briefing was 

completed the undersigned entered a report and recommendation that the habeas petition be 

dismissed. (Doc. 110) The recommendation was adopted by the district judge on September 16, 

2011. (Docs. 113, 114) On May 29, 2012 petitioner filed the instant habeas petition, which is a 

second or successive motion. (Doc. 136) 

 “A second or successive motion [to vacate] must be certified as provided in section 2244 

by a panel of the appropriate court of appeals....” 28 U.S.C. § 2255. The petitioner must seek and 

obtain this certification “[b]efore a second or successive application ... is filed in the district 

court....” Id. § 2244(b)(3)(A). “Failure to petition [the court of appeals] for permission to file a 

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successive § 2255 motion leaves the district court without jurisdiction to rule on the successive § 

2255 motion and the motion should be dismissed.” Lazo v. United States, 314 F.3d 571, 574 

(11th Cir. 2002), vacated on other grounds, Gonzalez v. Secretary, 326 F.3d 1175 (11th Cir. 

2003), superseding opinion, 366 F.3d 1253 (11th Cir. 2004) (en banc); accord Section 2255 Rule 

4(b)(when the motion on its face reflects “that the movant is not entitled to relief in the district 

court, the judge shall make an order for its summary dismissal”). 

 Petitioner has not satisfied the preconditions for filing such a second or successive 

petition for relief under § 2255. Accordingly, it is the Recommendation of the undersigned that 

the court dismiss Burke’s most recent § 2255 (doc. 136) petition without prejudice as a second 

or successive petition. 

See Magistrate Judge=s Explanation of Procedural Rights, attached, for important 

information on how to proceed. 

DONE this the 6th day of June 2012. 

/s/Katherine P. Nelson 

KATHERINE P. NELSON 

UNITED STATES MAGISTRATE JUDGE 

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MAGISTRATE JUDGE=S EXPLANATION OF PROCEDURAL RIGHTS 

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION 

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT 

1. Objection. Any party who objects to this recommendation or anything in it must, within 

fourteen (14) days of the date of service of this document, file specific written objections with 

the clerk of court. Failure to do so will bar a de novo determination by the district judge of 

anything in the recommendation and will bar an attack, on appeal, of the factual findings of the 

magistrate judge. See 28 U.S.C. ' 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 

1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en banc). The procedure for 

challenging the findings and recommendations of the magistrate judge is set out in more detail in 

SD ALA LR 72.4 (June 1, 1997), which provides that: 

A party may object to a recommendation entered by a magistrate judge in a 

dispositive matter, that is, a matter excepted by 28 U.S.C. ' 636(b)(1)(A), by 

filing a AStatement of Objection to Magistrate Judge=s Recommendation@ within 

ten [now fourteen] days after being served with a copy of the recommendation, 

unless a different time is established by order. The statement of objection shall 

specify those portions of the recommendation to which objection is made and the 

basis for the objection. The objecting party shall submit to the district judge, at the 

time of filing the objection, a brief setting forth the party=s arguments that the 

magistrate judge=s recommendation should be reviewed de novo and a different 

disposition made. It is insufficient to submit only a copy of the original brief 

submitted to the magistrate judge, although a copy of the original brief may be 

submitted or referred to and incorporated into the brief in support of the objection. 

Failure to submit a brief in support of the objection may be deemed an 

abandonment of the objection. 

(Emphasis added) A magistrate judge=s recommendation cannot be appealed to a Court of 

Appeals; only the district judge=s order or judgment can be appealed. 

2. Transcript (applicable where proceedings tape recorded). Pursuant to 28 U.S.C. '

1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this 

action are adequate for purposes of review. Any party planning to object to this recommendation, 

but unable to pay the fee for a transcript, is advised that a judicial 

determination that transcription is necessary is required before the United States will pay the cost 

of the transcript. 

 /s/Katherine P. Nelson

 UNITED STATES MAGISTRATE JUDGE 

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