Opinion
4:17-CR-51-CDL-MSH-1 4:18-CV-231-CDL
07-27-2022
JIMMY COBB, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
On April 12, 2022, Petitioner filed a second motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (ECF No. 115). Pending before the Court is Respondent's motion to dismiss (ECF No. 117). It is recommended Respondent's motion be granted.
BACKGROUND
On March 5, 2018, Petitioner pleaded guilty to the attempted online enticement of a minor in violation of 18 U.S.C. § 2422(b). Plea Sheet 1, ECF No. 35. On July 18, 2018, Petitioner was sentenced to 24 months' imprisonment and 5 years of supervised release. Judgment 2-3, ECF No. 54.
On November 26, 2018, Petitioner moved to vacate his sentence under 28 U.S.C. §2255 (ECF No. 59). The Court denied the motion on July 15, 2020. Order & R. 4-21, Apr. 30, 2020, ECF No. 104; Order 1, ECF No. 107 (adopting recommendation). Petitioner filed an appeal (ECF No. 108) of the denial on August 4, 2020. However, Petitioner was denied a certificate of appealability by the Eleventh Circuit Court of Appeals (ECF No. 113) and a writ of certiorari by the United States Supreme Court (ECF No. 114).
On April 12, 2022, the Court received Petitioner's second pro se motion to vacate his sentence under 28 U.S.C. § 2255 (ECF 115). On June 13, 2022, Respondent moved to dismiss (ECF No. 117) in lieu of responding. On June 29, 2022, the Court received Petitioner's response (ECF No. 118). Respondent's motion to dismiss is ripe for review.
DISCUSSION
Respondent moves to dismiss Petitioner's motion to vacate, arguing the Court lacks jurisdiction, as this is Petitioner's second or successive motion under 28 U.S.C. § 2255. Mot. to Dismiss 3-5, ECF No. 117. The Court agrees and recommends Respondent's motion be granted.
I. Petitioner's motion is statutorily barred under 28 U.S.C. § 2255(h).
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).
Here, Petitioner's § 2255 motion to vacate is successive to the § 2255 motion he filed on November 26, 2018 (ECF No. 60), which the Court denied on its merits. R. & R. 4-21, Apr. 30, 20220; Order 1, July 15, 2020 (adopting recommendation). Petitioner has not sought an order from the Eleventh Circuit Court of Appeals authorizing the Court to consider his current motion. Accordingly, the Court lacks jurisdiction to consider Petitioner's second § 2255 motion.
Both Petitioner's first and second § 2255 motions challenge the judgment he received on July 18, 2018, imposing his sentence. As a result, Petitioner's current motion falls within the definition of “successive” as defined by the Eleventh Circuit in Patterson v. Sec'y, Fla. Dep't of Corr., 849 F.3d 1321, 1325 (11th Cir. 2017) (en banc) (finding a “successive motion” one that is successive to a prior § 2255 motion and challenges the judgment “authorizing the petitioner's confinement”).
II. The exceptions provided by 28 U.S.C. § 2255(h)(1),(2) do not apply to Petitioner's motion.
Petitioner avoids addressing the successive nature of his current § 2255 motion. Instead, he contends his motion to vacate deserves to be evaluated on its merit due to his actual innocence and entitlement to equitable tolling. Mot. to Vacate 7-12. However, only two circumstances exist in which a successive limitation may be overcome. See Gilbert v. U.S., 640 F.3d 1293, 1305 (11th Cir. 2011) (acknowledging 28 U.S.C. § 2255(h)(1),(2) as the only two circumstances that overcome a 28 U.S.C. § 2255(h) bar). The first provides an exception in cases where newly discovered evidence would cause a reasonable factfinder to find the petitioner not guilty. 28 U.S.C. § 2255(h)(1). The second provides an exception in cases where a new rule of constitutional law was previously unavailable. Id. § 2255(h)(2). In both circumstances, the petitioner must obtain authorization to raise his motion “by a panel of the appropriate court of appeals.” Id. § 2255(h).
Within his discussion of equitable tolling and actual innocence, Petitioner does not contend a newly established constitutional law. However, Petitioner does argue new evidence has been discovered. Mot. to Vacate 13. Specifically, Petitioner states he recently learned of phone calls which had been withheld by the Government during trial. Id. at 13-14. Pretermitting whether Petitioner's allegations of new evidence warrant an exception under § 2255(h)(1), Petitioner has not received a certification from the Eleventh Circuit Court of Appeals permitting review of his second § 2255 motion. As a result, Petitioner's motion remains statutorily barred under 28 U.S.C. § 2255(h), and the Court continues to lack jurisdiction to consider the merits of his second § 2255 motion. Accordingly, the Court 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. 117) motion be granted and that Petitioner's second motion to vacate (ECF No. 115) 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. Any objection should be no longer than twenty (20) pages in length. See M.D. Ga. L.R. 7.4. 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,