Opinion
CASE NO. 4:14-CR-7-CDL-MSH-1 CASE NO. 4:19-CV-196-CDL-MSH
06-03-2020
KRISTOPHER CARVER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
28 U.S.C. § 2255 REPORT AND RECOMMENDATION
On November 18, 2019, Petitioner filed a second motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (ECF No. 125). Pending before the Court is Respondent's motion to dismiss (ECF No. 129). For the hereinbelow reasons, it is recommended that Respondent's motion be granted.
BACKGROUND
On December 8, 2014, Petitioner pled guilty to conspiracy to possess methamphetamine with intent to distribute under 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii) (count one) and possession of a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A) (count four). Plea Agreement 1, ECF No. 66; Judgment 1, ECF No. 93. Petitioner was sentenced to 190 months imprisonment (130 months for count one and 60 months for count four to be served consecutively to count one), five years supervised release, and a $200 assessment. Judgment 2-5. Judgment was entered against him on April 7, 2015. Id. at 1. Petitioner appealed his conviction to the Eleventh Circuit Court of Appeals on April 17, 2015. Notice of Appeal 1, ECF No. 99. On November 17, 2015, the Eleventh Circuit affirmed Petitioner's conviction and issued its mandate on December 16, 2015. Op. & Final J. of Conviction 2, ECF No. 111; Mandate 1, ECF No. 112.
The Court received Petitioner's first motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (ECF No. 117) on May 2, 2018. Respondent moved to dismiss (ECF No. 119) Petitioner's first motion in lieu of responding on June 19, 2018. The Court received Petitioner's response (ECF No. 120) to Respondent's motion to dismiss on July 25, 2018. On August 14, 2019, the undersigned recommended that Petitioner's first motion to vacate be dismissed both because it lacked merit and because it was untimely. R. & R. 2-9, ECF No. 122. On October 3, 2019, the Court adopted the recommendation of the magistrate judge, dismissed Petitioner's first motion to vacate, and entered judgement in Respondent's favor. Order 1, ECF No. 123; Judgement, ECF No. 124.
The Court received Petitioner's pending second motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (ECF No. 125) on November 18, 2019. On December 16, 2019, Respondent moved to dismiss (ECF No. 129) in lieu of responding. Petitioner failed to respond. This motion is ripe for review.
DISCUSSION
Respondent moves to dismiss Petitioner's motion to vacate, arguing the Court lacks jurisdiction because this is Petitioner's second or successive motion under 28 U.S.C. § 2255. Mot. to Dismiss 3-6, ECF No. 129. The Court agrees and recommends that Respondent's motion be granted.
I. Standards
A prisoner serving a federal sentence may move the sentencing court to "correct" a sentence "imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). However, "[a] second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain" newly discovered evidence or a new rule of constitutional law that has been retroactively applied to cases on collateral review. 28 U.S.C. § 2255(h). "Without [this] authorization, the district court lacks jurisdiction to consider a second or successive petition." United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005) (per curiam).
II. Respondent's Motion
Respondent argues that Petitioner's second motion to vacate constitutes an unauthorized second or successive motion because the Court dismissed his first motion with prejudice. Mot. to Dismiss 3-6. Petitioner argues that his second § 2255 motion is timely and does not constitute a second or successive motion because he raises issues recently addressed by the United States Supreme Court in United States v. Davis, -- U.S.--, 139 S. Ct. 2319 (2019). Mot. to Vacate 2, ECF No. 125. First, he contends that his firearm conviction under 18 U.S.C. § 924(c)(1)(A) is invalid under Davis. Id. at 3. Second, he asserts that his conviction for conspiracy to possess methamphetamine with intent to distribute under 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii) is invalid in light of the United States Supreme Court's decisions in Deschamps v. United States, 570 U.S. 254 (2013), Mathis v. United States, -- U.S.--, 136 S. Ct. 2243 (2016), Sessions v. Dimaya, -- U.S.--, 138 S. Ct. 1204 (2018), and Davis. Id.
Petitioner raised this first ground in his first motion to vacate, and the Court denied his first motion on the merits as to that ground. R. & R. 2-6, ECF No. 122; Order 1, ECF No. 123 (adopting recommendation). As to Petitioner's second ground, Deschamps, Mathis, Dimaya, and Davis do not address convictions under 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii). Therefore, he offers no basis obviating the requirement that he receive authorization to file a second or successive motion to vacate. See 28 U.S.C. § 2255(h). In unpublished opinions, the Eleventh Circuit has repeatedly held that a dismissal of a § 2255 motion as untimely constitutes a dismissal with prejudice, rendering subsequent § 2255 motions second or successive motions. See Boykin v. United States, 592 F. App'x 809, 812 (11th Cir. 2014); Candelario v. Warden, 592 F. App'x 784, 785 n.1 (11th Cir. 2014) ("[A] second petition is successive if the first was denied or dismissed with prejudice, and a dismissal for untimeliness is with prejudice . . . ." (citations omitted)); Carter v. United States, 405 F. App'x 409, 410 (11th Cir. 2010) (remanding for dismissal for lack of jurisdiction a second § 2255 motion filed without permission after first § 2255 motion was dismissed as untimely). Other circuits agree. Rohn v. Horton, 508 F. App'x 170, 171 (3d Cir. 2013); In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011); In re Flowers, 595 F.3d 204, 205 (5th Cir. 2009); McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009); Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003); Villanueva v. United States, 346 F.3d 55, 61 (2d Cir. 2003).
Petitioner has not sought permission from the Eleventh Circuit to file a second or successive petition after his first was dismissed as untimely and on the merits. Consequently, this Court lacks jurisdiction to consider his second motion to vacate pursuant to § 2255. The Court, therefore, RECOMMENDS that Respondent's motion to dismiss be GRANTED and that Petitioner's second motion to vacate be DISMISSED as an unauthorized second or successive petition.
CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts provides that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A certificate of appealability may issue only if the applicant makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). If a court denies a collateral motion on the merits, this standard requires a petitioner to "demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a court denies a collateral motion on procedural grounds, this standard requires a petitioner to demonstrate 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." Id. at 478. Petitioner cannot meet either of these standards and, therefore, a certificate of appealability in this case should be denied.
CONCLUSION
For the foregoing reasons, it is recommended that Respondent's motion to dismiss (ECF No. 129) motion be granted and that Petitioner's second motion to vacate (ECF No. 129) be dismissed. Additionally, a certificate of appealability should be denied. Pursuant to 28 U.S.C. § 636(b)(1), Petitioner may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
Petitioner is hereby notified that, pursuant to Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice."
SO RECOMMENDED, this 3rd day of June, 2020.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE