IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JAMES PATRICK PREYEAR, *

*

Petitioner, *

* CIVIL ACTION NO. 13-0388-KD-B

vs. * CRIMINAL NO. 05-00267-KD-B

*

UNITED STATES OF AMERICA, *

*

Respondent. *

Report and Recommendation

Pending before this court is James Patrick Preyear’s second 

petition seeking habeas corpus relief pursuant to 28 U.S.C. § 2255 

(Doc. 630). This action has been referred to the undersigned 

Magistrate Judge for a report and recommendation pursuant to 28 

U.S..C. § 636(b) and Rule 8 (b) of the Rules Governing Section 2255 

cases. The undersigned finds that the record is adequate to dispose 

of this matter; thus, no evidentiary hearing is required. Upon 

consideration, it is recommended that Preyear’s petition be 

dismissed, and that the Court find that Preyear is not entitled to 

a certificate of appealibility, and consequently, is not entitled 

to appeal in forma pauperis.

Following a trial, Preyear was convicted of conspiracy to posses 

with intent to distribute a controlled substance, and was sentenced 

to 294 months imprisonment. (Doc. 330). Preyear’s conviction and 

sentence were affirmed on appeal. (Doc. 395). Preyear then filed 

his initial petition to vacate his sentence pursuant to 28 U.S.C. 

Case 1:05-cr-00267-KD-B Document 632 Filed 09/18/13 Page 1 of 7
2

§ 2255. (Doc. 569). Upon consideration of his petition, the Court 

determined that the petition was untimely, and as a result, dismissed 

the petition and entered judgment against Preyear. (Docs. 590, 591). 

This Court denied Preyear’s request for a certificate of 

appealability. The Eleventh Circuit also denied the request. (Docs. 

591, 598).1

On July 15, 20132, Preyear filed the instant habeas petition. 

Because this constitutes Preyear’s second habeas petition, the Court 

sua sponte raises the issue of whether it is subject to dismissal 

as an unauthorized successive petition3. The Court observes that “[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 

 

1 Preyear also filed a motion for a reduction of his sentence pursuant 

to 18 USC § 3582. His request was denied on July 17, 2013. (Docs. 

623, 626, 628).

2 Under the mailbox rule, absent contrary evidence, a prisoner’s 

motion is deemed filed on the date it is delivered to prison officials 

for mailing. Washington v. United States, 243 F.3d 1299, 1301 (llth 

Cir. 2001).

3 Rule 4 of the Rules Governing Section 2255 Cases provides, in 

pertinent part: “If it plainly appears from the face of the petition 

and any exhibits annexed to it that the petitioner is not entitled 

to relief in the district court, the judge shall make an order for 

its summary dismissal and cause the petitioner to be notified.” Thus, 

a district court has the authority under this rule to dismiss frivolous 

habeas petitions prior to any answer by the United States. See Acosta 

v. Artuz, 221 F.3d 117, 123 (2nd Cir.2000) (“[T]he authority to raise 

[ ] procedural defenses sua sponte is consistent with the authority

provided to the district courts in 2254 Habeas Rule 4 and 2255 Habeas 

Rule 4(b).”). 

Case 1:05-cr-00267-KD-B Document 632 Filed 09/18/13 Page 2 of 7
3

U.S.C. § 2255(h). A petitioner must seek and obtain this 

certification “[b]efore a second or successive application. . is 

filed in the district court.” 28 U.S.C. § 2244(b)(3)(A). “Failure 

to petition [the court of appeals] for permission to file a successive 

§ 2255 motion leaves the district court without jurisdiction to rule 

on the successive § 2255 motion and he motion should be dismissed.” 

Lazo v. United States, 314 F.3d 571, 574 (llth Cir. 2002), vacated 

on other grounds sub nom. Gonzalez v. Sec’y for the Dep’t of Corr., 

326 F.3d 1175 (llth Cir. 2003), superseding opinion, 366 F. 3d 1253 

(llth Cir. 2004)(en banc); See also United States v. Holt, 417 F.3d 

1172, 1175 (llth Cir, 2007)(per curiam); Allen v. United States, 2012 

U.S. Dist. LEXIS 73734 (S.D. Ala. April 6, 2012).

In his petition, Preyear argues that the United States Supreme 

Court’s recent decision in Alleyne v. United States, 570 U.S. ____, 

133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013) entitles him to relief from 

the sentence imposed in this case. (Doc. 630 at 2). Preyear’s reliance 

on the Alleyne decision is misplaced because absent permission from 

the Eleventh Circuit authorizing Preyear to file a successive 

petition, this court lacks jurisdiction to address his petition. See

Lazo, 314 F.3d at 574; Fredriksen v. United States, 2013 U.S. Dist. 

LEXIS 127458 (S.D. Ala. August 2, 2013); Allen v. United States, 2012 

U.S. Dist. LEXIS 73734 (S.D. Ala. April 6, 2012). Preyear does not 

allege and the record does not establish that he sought and obtained 

Case 1:05-cr-00267-KD-B Document 632 Filed 09/18/13 Page 3 of 7
4

permission from the Eleventh Circuit before filing the instant 

successive petition; thus, this Court is required to dismiss his 

petition.

Accordingly, it is recommended that Preyear’s petition be 

dismissed, and that judgment be entered in favor of the Respondent, 

the United States and against Petitioner James Preyear.

CERTIFICATE OF APPEALABILITY

Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, 

the undersigned recommends that a certificate of appealability in 

this case be DENIED. 28 U.S.C. § 2255, Rule 11(a) (“The district court 

must issue or deny a certificate of appealability when it enters a 

final order adverse to the applicant.”). The habeas corpus statute 

makes clear that an applicant is entitled to appeal a district court’s 

denial of his habeas corpus petition only where a circuit justice 

or judge issues a certificate of appealability. 28 U.S.C. § 

2253(c)(1). A certificate of appealability may be issued only where 

“the applicant has made a substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2). 

Where a habeas petition is being denied, in part, on procedural 

grounds without reaching the merits of an underlying constitutional 

claim, “a COA should be issued [only] when the prisoner shows . . 

. that jurists of reason would find it debatable whether the petition 

states a valid claim of the denial of a constitutional right and that 

Case 1:05-cr-00267-KD-B Document 632 Filed 09/18/13 Page 4 of 7
5

jurists of reason would find it debatable whether the district court 

was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 

473, 484, 120 S. Ct. 1595, 1604 146 L. Ed. 2d 542 (2000). Where a 

habeas petition is being denied on the merits of an underlying 

constitutional claim, a certificate of appealability should be issued 

only when the petitioner demonstrates “that reasonable jurists would 

find the district court’s assessment of the constitutional claims 

debatable or wrong.” Id. (“To obtain a COA under § 2253(c), a habeas 

prisoner must make a substantial showing of the denial of a 

constitutional right, a demonstration that, under Barefoot [v. 

Estelle, 463 U.S. 880, 893, 103 S. Ct. 3383, 3394 77 L. Ed. 2d 1090 

(1983)], includes showing that reasonable jurists could debate 

whether (or, for that matter, agree that) the petition should have 

been resolved in a different manner or that the issues presented were 

adequate to deserve encouragement to proceed further.”) (internal 

quotation marks omitted); accord Miller El v. Cockrell, 537 U.S. 322, 

336, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003).

Preyear’s petition does not warrant the issuance of a Certificate 

of Appealability. As Preyear did not seek permission from the 

Eleventh Circuit before filing his successive petition, reasonable 

jurists could not debate whether his petition should be resolved in 

a different manner or deserves to proceed further. It is thus 

recommended that the Court deny any request for a Certificate of 

Case 1:05-cr-00267-KD-B Document 632 Filed 09/18/13 Page 5 of 7
6

Appealability be denied.

CONCLUSION

For the foregoing reasons, it is recommended that Petitioner’s 

§ 2255 Motion to Vacate, Set Aside, or Correct Sentence (Doc. 630) 

be DENIED, that this action be dismissed, and that judgment be entered 

in favor of Respondent, the United States of America, and against 

Petitioner, James Patrick Preyear. The undersigned Magistrate Judge 

further opines that Preyear is not entitled to the issuance of a 

certificate of appealability, and therefore, should be not permitted 

to proceed in forma pauperis. 

NOTICE OF RIGHT TO FILE OBJECTIONS

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

parties in the manner provided by law. 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 this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. 

P. 72(b); S.D. ALA. L.R. 72.4. 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.

Case 1:05-cr-00267-KD-B Document 632 Filed 09/18/13 Page 6 of 7
7

DONE this 17th day of September, 2013.

 /s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

Case 1:05-cr-00267-KD-B Document 632 Filed 09/18/13 Page 7 of 7