United States District Court, M.D. Alabama, Northern Division
W. HAROLD ALBRITTON, Senior District Judge.
This case is before the court on the Recommendation of the Magistrate Judge (Doc. #5), entered January 12, 2015, and the Petitioner's Objection (Doc. #8), filed on January 26, 2015.
Rainer objects to the Magistrate Judge's Recommendation finding his § 2255 motion filed in June 2014 to be successive. He maintains that because he was re-sentenced in October 2014 by a Federal District Court in the Northern District of Georgia - which granted his 28 U.S.C. § 2241 habeas petition seeking relief under the "savings clause" in § 2255(e) - that there is a new "judgment" in his case, making his § 2255 motion a first motion challenging the judgment. He cites the Supreme Court's holding in Magwood v. Patterson, 561 U.S. 320 (2010), to support this argument. Magwood, however, does not apply here because Rainer's § 2255 motion in this case was filed in June 2014, before the Georgia Federal Court re-sentenced him (in Oct. 2014). He was in fact challenging his original judgment of conviction in this June 2014 § 2255 motion, and this was his second § 2255 motion challenging that judgment.
Rainer has another § 2255 motion pending in this court, which he filed in November 2014 (Civil Action 2:14-cv-01136-WKW-SRW), after the Georgia Federal Court re-sentenced him. To the extent he challenges in that later action the intervening judgment that includes his re-sentencing, that § 2255 motion may well not be successive in light of Magwood.
Following an independent evaluation and de novo review of the file in this case, this court concludes that the Magistrate Judge correctly determined that the § 2255 motion Rainer filed in the instant case, in June 2014, is a successive § 2255 motion. It did not attack the October 2014 judgment, as it had not been entered when this § 2255 motion was filed; it attacked his original judgment of conviction. Moreover, Rainer never amended the § 2255 motion in this case. It is Rainer's § 2255 motion filed in Nov. 2014 that is possibly not successive.
Therefore, it is hereby ORDERED as follows:
1. Petitioner's Objection is OVERRULED.
2. The court ADOPTS the Recommendation of the Magistrate Judge.
3. This § 2255 motion is DISMISSED, as the Petitioner has failed to obtain the requisite order from the Eleventh Circuit Court of Appeals authorizing this ...