IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

TERRANCE KEOKI CALLEN, :

Petitioner, :

vs. : CIVIL ACTION NO. 09-0068-CG-C

UNITED STATES OF AMERICA, : CRIMINAL ACTION NO. 06-0176-CG

Respondent.

REPORT AND RECOMMENDATION

Petitioner, Terrance Keoki Callen, has filed yet another motion to vacate, set 

aside or correct his sentence, this time pursuant to 28 U.S.C. § 2255(f)(3) (Doc. 857). This 

action has been referred to the undersigned for entry of a report and recommendation 

pursuant to 28 U.S.C. § 636(b)(1)(B). Following consideration of all relevant pleadings in 

this case, it is recommended that Callen’s § 2255 motion be summarily dismissed as 

time-barred pursuant to 28 U.S.C. § 2255(f)(1), § 2255(f)(3) being inapplicable in this 

instance. Alternatively, the instant motion should be dismissed with prejudice due to 

petitioner’s failure to comply with 28 U.S.C. § 2244(b)(3)(A).

FACTUAL BACKGROUND

On October 19, 2006, Callen entered a counseled guilty plea to Count 16 of the 

superseding indictment. (See Doc. 327.) Count 16 of the superseding indictment charged 

petitioner with possession with intent to distribute crack cocaine in violation of 21 

U.S.C. § 841(a)(1). (Compare id. with Doc. 199.) Callen was sentenced, on April 4, 2007, to 

151 months imprisonment. (See Docket Sheet, Minute Entry for April 4, 2007.) Judgment 

was entered by the Court on April 10, 2007. (Doc. 494.) Petitioner’s 151-month sentence 

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was ordered to run concurrently “with any sentence the defendant receives in Dallas 

County Circuit Court case number 06-298. The Court orders that the custody time be 

counted from the time the defendant was arrested on state charges in Dallas County, 

Alabama, which was March 28, 2006.” (Id. at 2.) Callen did not appeal his conviction 

and sentence. (See, e.g., Doc. 857, at 1.)

On September 25, 2008, Callen filed a motion for retroactive application of 

sentencing guidelines to his crack cocaine offense pursuant to 18 U.S.C. § 3582(c)(2). 

(Doc. 654.) Petitioner’s motion was denied by order dated October 23, 2008. (Doc. 657.) 

“The defendant’s original total offense level was derived from the Career Offender 

provision of the Sentencing Guidelines, which makes him ineligible for a reduction in 

sentence due to the amended Guidelines for crack cocaine offenses.” (Id.) Thereafter, 

Callen filed his first motion to vacate on February 5, 2009. (Doc. 666, at 14 (motion 

executed on February 5, 2009).) This motion was denied as time-barred on April 16, 

2009. (Docs. 677-678; compare id. with Doc. 671.) 

Callen’s December 16, 2010 motion for leave to file a second or successive motion 

to vacate (Doc. 736) was denied by the Court on December 20, 2010 (Doc. 738). “This is a 

motion for leave to file a second or successive Section 2255 petition. Such a motion must 

be ruled on by the 11th Circuit Court of Appeals, and only if the motion is granted shall 

the petition be filed in this court. The clerk is directed to return the motion to the 

petitioner so that he may file it in the appropriate court.” (Id.) Callen’s April 25, 2011 

motion for reconsideration under Rule 60(b)(6) (Doc. 741) was denied on May 10, 2011 

(Doc. 742).

On November 22, 2011, Callen filed another motion for retroactive application of

the sentencing guidelines to his crack cocaine offense pursuant to 18 U.S.C. § 3582. (Doc. 

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772.) This motion was denied by order dated December 27, 2011. (Doc. 795.) “The 

defendant’s original total offense level was derived from the Career Offender provision 

of the Sentencing Guidelines, which makes him ineligible for a reduction in sentence 

due to the amended Guidelines for crack cocaine offenses.” (Id.) Callen filed written 

notice of appeal on January 11, 2012. (Doc. 799.)1 By mandate issued on May 9, 2012, the 

Eleventh Circuit Court of Appeals granted the government’s motion for summary 

affirmance of this Court’s denial of Callen’s request for a sentence reduction. (See Doc. 

821, at 2.)

The instant motion to vacate was filed by Callen in this Court on March 18, 2013. 

(Doc. 857.)2 Therein, petitioner contends that his sentence is due to be vacated and 

corrected pursuant to the Supreme Court’s decision in Dorsey v. United States, U.S. 

, 132 S.Ct. 2321, 183 L.Ed.2d 250 (Jun. 21, 2012) and since the instant motion has been 

filed within a year of Dorsey it is timely in accordance with 28 U.S.C. § 2255(f)(3). (See id. 

at 2-6.)

 1 A little more than one month after filing written notice of appeal, on February 14, 

2012, Callen sought reconsideration by the Court of its order declining to reduce his sentence. 

(Doc. 809.) The motion for reconsideration was dismissed by order dated February 16, 2012: 

“The court is without jurisdiction to reconsider the matter, since the defendant appealed the 

order he is requesting the court to reconsider. The filing of a notice of appeal is an event of 

jurisdictional significance-it confers jurisdiction on the court of appeals and divests the district 

court of its control over those aspects of the case involved in the appeal.” (Doc. 810.)

2 Concurrent with the filing of the motion to vacate, Callen also filed a motion to 

expedite (Doc. 858) and a motion requesting transcripts at government expense (Doc. 859). 

Given the contents of this report and recommendation, the motion to expedite (Doc. 858) is 

MOOT and the motion requesting transcripts at government expense (Doc. 859) is DENIED as 

unnecessary.

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CONCLUSIONS OF LAW

Rule 4 of the Rules Governing Section 2255 cases provides, in pertinent 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.” 28 U.S.C. foll. § 2255, Rule 4(b). 

It is clearly appropriate for a district court to summarily dismiss time-barred motions to 

vacate prior to any answer or other pleading by the United States. See, e.g., United States 

v. Johnson, 2012 WL 3070972, *1 (M.D. Fla. July 26, 2012); Jones v. United States, 2012 WL 

3704759, *1 (N.D. Ga. July 18, 2012), report and recommendation adopted, 2012 WL 3704837 

(N.D. Ga. Aug. 27, 2012). Just as important, it is appropriate for a district court to 

summarily dismiss a successive § 2255 motion prior to any answer or other pleading by 

the United States. See Nunn v. United States, 2013 WL 1099321, *2 (M.D. Ala. Feb. 27, 

2013) (“Petitioner has yet to obtain the pre-certification from the Eleventh Circuit Court 

of Appeals authorizing this court to consider a successive § 2255 motion. The motion 

now before this court is Petitioner’s fifth § 2255 motion attacking the same convictions 

and sentence. Because Petitioner has not obtained permission from the appellate court 

to file a successive § 2255 motion, this court lacks the jurisdiction to consider the merits 

of his present § 2255 motion and the motion should be summarily dismissed.”

(emphasis supplied)), report and recommendation adopted, 2013 WL 1099733 (M.D. Ala. 

Mar. 15, 2013); United States v. Minefield, 2011 WL 4374201, *2 (M.D. Ala. Aug. 17, 2011) 

(“The pleadings and documents in the instant case reflect that Minefield has not 

received certification from the Eleventh Circuit Court of Appeals authorizing this court 

to consider a successive § 2255 motion. A district court lacks the jurisdiction to consider 

a successive § 2255 motion where the movant fails to obtain permission from the 

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appellate court to file a successive motion. Accordingly, this court lacks the jurisdiction 

to consider the merits of Minefield’s present motion, and the motion is due to be 

summarily dismissed.” (emphasis supplied)), report and recommendation adopted, 2011 

WL 4374009 (M.D. Ala. Sept. 20, 2011).

A. Statute of Limitations. The Anti-Terrorism and Effective Death Penalty 

Act of 1996 (“AEDPA”) was enacted on April 24, 1996 and, pertinent to this case, added 

a new subdivision to 28 U.S.C. § 2255 providing for a one-year period of limitations 

within which federal prisoners must file their motions to vacate pursuant to 28 U.S.C. § 

2255. Akins v. United States, 204 F.3d 1086, 1089 (11th Cir.), cert. denied, 531 U.S. 971, 121 

S.Ct. 410, 148 L.Ed.2d 316 (2000). 

A 1-year period of limitation shall apply to a motion under this section. 

The limitation period shall run from the latest of-- 

 

(1) the date on which the judgment of conviction becomes final; 

(2) the date on which the impediment to making a motion created 

by governmental action in violation of the Constitution or laws of 

the United States is removed, if the movant was prevented from 

making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by 

the Supreme Court, if the right has been newly recognized by the 

Supreme Court and made retroactively applicable to cases on 

collateral review; or 

 

(4) the date on which the facts supporting the claim or claims 

presented could have been discovered through the exercise of due 

diligence. 

28 U.S.C. § 2255(f).

In the typical case, a petitioner interposes no argument in favor of application of 

subsections (2), (3), and (4) of § 2255(f), such that the timeliness of a motion to vacate, 

set aside or correct a sentence becomes relatively easy to calculate under § 2255(f)(1) 

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based upon the date on which a petitioner’s judgment of conviction becomes final. As is 

implicitly recognized in the instant motion to vacate (see Doc. 857, at 1-6), if relegated to 

§ 2255(f)(1), the motion would be deemed untimely since Callen’s judgment of 

conviction became final on April 20, 2007, compare Ramirez v. United States, 146 

Fed.Appx. 325, 2005 WL 1706142, *1 (11th Cir. July 22, 2005) (“In most cases, a judgment 

of conviction becomes final when the time for filing a direct appeal expires. . . . For 

federal prisoners, the time for filing a direct appeal expires ten days after the written 

judgment of conviction is entered on the criminal docket.”), cert. denied, 546 U.S. 1025, 

126 S.Ct. 674, 163 L.Ed.2d 543 (2005) with Mederos v. United States, 218 F.3d 1252, 1253 

(11th Cir. 2000) (“[T]he judgment of conviction became final on February 2, 1998, ten 

days after it was entered.”),

3 and the movant did not file the instant petition until March 

18, 2013, almost six (6) years to the date too late. In recognition of his inability to 

establish timeliness in accordance with § 2255(f)(1), Callen argues instead that his 

motion to vacate is timely under § 2255(f)(3) (“[T]he date on which the right asserted 

was initially recognized by the Supreme Court, if that right has been newly recognized 

by the Supreme Court and made retroactively applicable to cases on collateral 

review[.]”) given the Supreme Court’s recent holding in Dorsey. (See Doc. 857.) Because 

Callen’s reliance on Dorsey is misplaced, it is proper for this Court to summarily dismiss 

his motion to vacate as (again) time-barred under § 2255(f)(1).

 3 In 2009, the time for filing an appeal was changed from ten days to fourteen 

days. Compare Fed.R.App.P. 4(b)(1)(A) (“In a criminal case, a defendant’s notice of appeal must 

be filed in the district court within 14 days after the later of: (i) the entry of either the judgment 

or the order being appealed; or (ii) the filing of the government’s notice of appeal.”) with 

Advisory Committee Notes, 2009 Amendments, at 530 (“Subdivisions (b)(1)(A) and (b)(3)(A). 

The times set in the former rule at 10 days have been revised to 14 days.”).

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In Dorsey, after recognizing that the Fair Sentencing Act (“FSA”) took effect on 

August 3, 2010 and reduced “the crack-to-powder cocaine disparity from 100-to-1 to 18-

to-1[,]” id. at , 132 S.Ct. at 2326, the Supreme Court held that “Congress intended the . 

. . Act’s more lenient penalties to apply to those offenders whose crimes preceded 

August 3, 2010, but who are sentenced after that date.” Id. at , 132 S.Ct. at 2331 

(emphasis supplied). The Eleventh Circuit has specifically recognized that the FSA does 

not retroactively apply to offenders who were sentenced prior to August 3, 2010. Fields 

v. Warden, FCC Coleman-USP 1, 484 Fed.Appx. 425, 427 (11th Cir. July 19, 2012) (“The 

Supreme Court recently held that the FSA applies to those who committed acts prior to 

the passage of the FSA, but were sentenced following the August 3, 2010 effective date 

of the FSA. However, Fields was sentenced prior to August 3, 2010, and thus the FSA 

does not retroactively apply to him.” (internal citation omitted)); see also United States v. 

Pratt, 2013 WL 864464, *1 (3rd Cir. Mar. 8, 2013) (“Although the Sentencing Commission 

decided that Amendment 750 should be applied retroactively, the FSA itself is not 

retroactively applicable to defendants who were sentenced before its effective date. 

Although Pratt argues to the contrary, the Supreme Court’s decision in Dorsey does not 

affect this conclusion. Rather, Dorsey held that the FSA applies to defendants whose 

offenses were committed pre-FSA but were sentenced after its effective date. Such is not 

the case here, and thus, Pratt’s reliance on Dorsey is misplaced.” (internal citations 

omitted)); United States v. Finley, 487 Fed.Appx. 260, 265 (6th Cir. Jun. 29, 2012) (“In 

Dorsey . . ., the Supreme Court recently held that the FSA applies to all offenders 

sentenced after the FSA’s effective date, August 3, 2010, even if their crimes were 

committed prior to August 3, 2010. This clarification does not help Finley, however, as 

he was sentenced prior to August 3, 2010.”), cert. denied, U.S. , 133 S.Ct. 799, 184 

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L.Ed.2d 591 (2012); Thompson v. United States, 2013 WL 772696, *3 (W.D. Pa. Feb. 28, 

2013) (“Dorsey did not imply that the FSA would be applied in situations where, as here, 

a defendant was sentenced to a mandatory minimum term of imprisonment well before 

the FSA’s August 3, 2010 effective date. Even before Dorsey, courts did not apply 

retroactively the new guidelines in cases where a defendant’s mandatory minimum 

sentence was imposed prior to the FSA’s enactment. Dorsey cannot be read to apply the 

new guidelines retroactively to cases where at the time of sentencing the FSA was not 

yet enacted and the guidelines had yet to be amended by the Sentencing Commission.” 

(internal citations omitted)). Because Callen was sentenced prior to August 3, 2010,

Dorsey has no application and the FSA does not retroactively apply to him. Fields, supra. 

Thus, the one-year limitations period set forth in § 2255(f)(3) is not applicable to Callen’s 

case. See, e.g., Ingram v. United States, 2012 WL 6700193, *3 (S.D.N.Y. Dec. 26, 2012 

(“Ingram’s argument that the decision is Dorsey[] should toll the applicable period of 

limitation under § 2255(f)(3) also fails. . . . Dorsey did not make the FSA retroactively 

applicable to offenders, such as Ingram, whose crimes and whose sentencing preceded 

the date on which the FSA became effective.” (emphasis in original)). 

In light of the foregoing, § 2255(f)(1) applies in this case. Again, then, petitioner’s 

one-year limitations period began on April 20, 2007 and expired one year later on April 

20, 2008. Callen’s most recent § 2255 motion to vacate, filed March 18, 2013 (Doc. 857), is 

untimely by almost six years. A federal court can consider the merits of an untimely § 

2255 motion only if the petitioner establishes that he is factually innocent of the crime 

for which he was convicted, see San Martin v. McNeil, 633 F.3d 1257, 1268 (11th Cir. 2011) 

(“The actual innocence exception is ‘exceedingly narrow in scope,’ and the petitioner 

must demonstrate that he is factually innocent rather than legally innocent.”), cert. 

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denied sub nom. San Martin v. Tucker, U.S. , 132 S.Ct. 158, 181 L.Ed.2d 73 (2011), or 

if he establishes that the limitations period should be equitably tolled, Johnson v. United 

States, 340 F.3d 1219, 1226 (11th Cir. 2003) (“We have emphasized [] that equitable 

tolling applies only in truly extraordinary circumstances. . . . Appellant bears the 

burden of establishing that he is entitled to this extraordinary relief.”), aff’d, 544 U.S. 

295, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005); Jones v. United States, 304 F.3d 1035, 1039-

1040 (11th Cir. 2002) (“The petitioner has the burden of proving entitlement to equitable 

tolling by showing that ‘extraordinary circumstances that were both beyond his control 

and unavoidable even with diligence’ prevented filing the petition on time.” (emphasis 

in original)), cert. denied, 538 U.S. 947, 123 S.Ct. 1622, 155 L.Ed.2d 490 (2003). Callen 

makes no argument that he is actually/factually innocent of the crime for which he was 

convicted nor does he make an argument for equitable tolling (see Doc. 857), and 

nothing in the record supports either exception. Accordingly, Callen’s motion to vacate 

is due to be summarily dismissed as untimely.

B. Successive Petition. In addition, Callen’s motion to vacate is due to be 

summarily dismissed with prejudice due to his failure to comply with 28 U.S.C. § 

2244(b)(3)(A). It is clear that a “petitioner first must obtain an order from the court of 

appeals authorizing the district court to consider” a second or successive petition 

because “[w]ithout authorization, the district court lacks jurisdiction to consider [such] 

second or successive petition.” United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005) 

(citations omitted); see also Tompkins v. Secretary, Department of Corrections, 557 F.3d 1257, 

1259 (11th Cir.) (“Section 2244(b)(3)(A) requires a district court to dismiss for lack of 

jurisdiction a second or successive petition for a writ of habeas corpus unless the 

petitioner has obtained an order authorizing the district court to consider it.”), cert. 

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denied sub nom. Tompkins v. McNeil, 555 U.S. 1161, 129 S.Ct. 1305, 173 L.Ed.2d 482 (2009); 

Minefield, supra, at *2 (“A district court lacks the jurisdiction to consider a successive § 

2255 motion where the movant fails to obtain permission from the appellate court to file 

a successive motion.”) .

There can be no question but that the instant motion to vacate, filed March 18, 

2013, is a second/successive petition,

4 yet there is nothing to indicate that Callen filed 

an application with the Eleventh Circuit Court of Appeals seeking an order authorizing 

this Court to consider this motion. See, e.g., Farris v. United States, 333 F.3d 1211, 1216 

(11th Cir. 2003) (“[The movant must first file an application with the appropriate court 

of appeals for an order authorizing the district court to consider it.”). Because petitioner 

has not applied to the Eleventh Circuit Court of Appeals for permission to file this his 

second—if not third (see Docs. 736 & 738)—motion to vacate, nor been granted leave of 

that court to file another motion to vacate, this Court lacks jurisdiction to consider 

Callen’s request for relief, compare id. (“Without authorization, the district court lacks 

jurisdiction to consider a second or successive petition.”) with Hill v. Hopper, 112 F.3d 

1088, 1089 (11th Cir.) (“Under 28 U.S.C. § 2244(b)(3)(A), the district court lacked 

jurisdiction to consider Appellant Hill’s request for relief because Hill had not applied 

 4 A district court’s dismissal of a petitioner’s “first” habeas petition on statute of 

limitations grounds, as here, constitutes an adjudication on the merits for purposes of invoking 

the second or successive requirements of 28 U.S.C. § 2244(b)(3). See Jordan v. Secretary, 

Department of Corrections, 485 F.3d 1351, 1353 (11th Cir.) (“[I]n September of 2000, Jordan filed 

his first petition in federal court pursuant to 28 U.S.C. § 2254. The district court dismissed it 

with prejudice as untimely. He then filed another Rule 3.850 motion for collateral relief in the 

state trial court. After that motion was denied, Jordan in October of 2003 filed pro se an 

application in this Court seeking an order permitting him to file a second or successive § 2254 

petition in the district court. . . . A panel of this Court found that Jordan had made out a prima 

facie case under 28 U.S.C. § 2244(b)(2)(B) for filing a second or successive petition in the district 

court and entered an order permitting him to do so.”), cert. denied sub nom. Jordan v. McDonough, 

552 U.S. 979, 128 S.Ct. 450, 169 L.Ed.2d 315 (2007).

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to this Court for permission to file a second habeas petition.”), cert. denied, 520 U.S. 1203, 

117 S.Ct. 1571, 137 L.Ed.2d 714 (1997). Accordingly, this cause is due to be summarily 

dismissed, with prejudice, for want of jurisdiction pursuant to 28 U.S.C. § 2244(b)(3)(A). 

Compare Tompkins, supra, 557 F.3d at 1259 (“Section 2244(b)(3)(A) requires a district 

court to dismiss for lack of jurisdiction a second or successive petition for a writ of 

habeas corpus unless the petitioner has obtained an order authorizing the district court 

to consider it.”) with United States v. Holt, supra, 417 F.3d at 1175 (“Without 

authorization, the district court lacks jurisdiction to consider a second or successive 

petition.”).5

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. foll. § 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 her

 5 The undersigned recommends that this Court dismiss with prejudice Callen’s

present motion to vacate due to his failure to comply with § 2244(b)(3)(A), rather than transfer 

this matter to the Eleventh Circuit pursuant to 28 U.S.C. § 1631, see Guenther v. Holt, 173 F.3d 

1328, 1330-1331, n.4 (11th Cir. 1999) (“We note that the cases from the Second, Sixth and Tenth 

Circuits cited in the preceding paragraphs did not analyze § 1631 or explain why it was 

appropriate authority for the transfer. Significant arguments can be made on either side as to 

the viability of § 1631, and a different result may occur depending upon whether the matter to 

be transferred is viewed as a § 2254 application or as a motion under § 2244(b)(3)(A) or as a 

motion to treat the § 2254 application as a motion under § 2244(b)(3)(A). Also, we note that 

there are concerns relating to the application of the plain language in 28 U.S.C. § 2244(b)(3)(A) 

requiring an applicant to move in the court of appeals ‘[b]efore a second or successive 

application [for a writ of habeas corpus] is filed in the district court.’”), cert. denied, 528 U.S. 

1085, 120 S.Ct. 811, 145 L.Ed.2d 683 (2000); Dunn v. Singletary, 168 F.3d 440, 441 n.1 (11th Cir. 

1999) (“Immediately after the instant habeas corpus petition was filed, the district court 

dismissed it without prejudice on May 30, 1997, to allow Dunn to seek authorization from this 

court to proceed with this successive petition as required by § 2244(b)(3)(A).”), because, as 

indicated above, his petition “in addition to being second or successive, [is] indisputably timebarred.” Guenther, 173 F.3d at 1331.

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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 issue only where 

“the applicant has made a substantial showing of the denial of a constitutional right.” 

28 U.S.C. § 2243(c)(2). Where, as here, a habeas petition is being denied in its entirety

on procedural grounds without reaching the merits of an underlying constitutional 

claim, “a COA should issue [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 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). Given the applicability of the one-year 

limitations period in this case, as well as the instant motion to vacate being 

unquestionably a second/successive petition, a reasonable jurist could not conclude 

that this Court is in error for summarily dismissing Callen’s motion to vacate, nor could 

a reasonable jurist conclude that petitioner should be allowed to proceed further with 

respect to his claims. Slack, supra, 529 U.S. at 484, 120 S.Ct. at 1604 (“Where a plain 

procedural bar is present and the district court is correct to invoke it to dispose of the 

case, a reasonable jurist could not conclude either that the district court erred in 

dismissing the petition or that the petitioner should be allowed to proceed further.”). 

Accordingly, petitioner is not entitled to a certificate of appealability.

Rule 11(a) further 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. Brightwell v. Patterson, CA 11-00165-WS-C, Doc. 14 (order from 

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Eleventh Circuit denying petitioner a certificate of appealability in a case in which this 

exact procedure was outlined in the report and recommendation); see also Castrejon v. 

United States, 2011 WL 3241817, *20 (S.D. Ala. Jun. 28, 2011) (providing for the same 

procedure), report and recommendation adopted, 2011 WL 3241580 (S.D. Ala. July 29, 2011); 

Griffin v. DeRosa, 2010 WL 3943702, at *4 (N.D. Fla. Sept. 20, 2010) (providing for same 

procedure), report and recommendation adopted sub nom. Griffin v. Butterworth, 2010 WL 

3943699 (N.D.Fla. Oct. 5, 2010).

CONCLUSION

The Magistrate Judge recommends that the instant motion to vacate (Doc. 857) be 

summarily dismissed as time-barred pursuant to 28 U.S.C. § 2255(f)(1). Alternatively, 

Callen’s motion is due to be summarily dismissed with prejudice due to his failure to 

comply with 28 U.S.C. § 2244(b)(3)(A). Petitioner is not entitled to a certificate of 

appealability and, therefore, he is not entitled to appeal in forma pauperis.

The instructions which follow the undersigned’s signature contain important 

information regarding objections to the report and recommendation of the Magistrate 

Judge.

DONE this the 3rd day of April, 2013.

 s/WILLIAM E. CASSADY 

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

l. 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 this 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 ‘Statement of Objection to Magistrate Judge’s Recommendation’ within ten 

days6 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. 

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 case 

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.

 6 Effective December 1, 2009, the time for filing written objections was extended to 

“14 days after being served with a copy of the recommended disposition[.]” Fed.R.Civ.P. 

72(b)(2). 

Case 2:06-cr-00176-CG-N Document 862 Filed 04/03/13 Page 14 of 14