United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
F. BIVINS UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Petitioner Gareth Lorenzo
Perry's Motion to Vacate, Set Aside, or Correct Sentence
pursuant to 28 U.S.C. § 2255. (Doc. 50). 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
Perry's petition be denied, and that the
Court find that Perry is not entitled to a certificate of
appealability or the option to appeal in forma
was indicted on September 24, 2014 for two counts of robbery
under the Hobbs Act, 18 U.S.C. § 1951(a), (counts one
and three); and two counts of brandishing a firearm during,
and in relation to, a crime of violence, in violation of the
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(c) (counts two and four). (Doc. 1). Perry entered
into a plea agreement with the Government. (Doc. 26). He pled
guilty to counts one and two, and the Government agreed to
dismiss counts three and four. (Docs. 27, 40). Perry was
sentenced to 30 months imprisonment on count one, and 84
months imprisonment on count two, for a total of 114 months
imprisonment. (Doc. 40). He did not appeal.
first petition seeking habeas corpus relief under 28 U.S.C.
§ 2255 was received by the Clerk's office on June
17, 2016. (Doc. 43). He filed an amended petition on June 28,
2016. (Doc. 45). In his amended petition, Perry asserted that
his robbery conviction should be vacated because it no longer
qualified as a crime of violence. (Doc. 45 at 4, 12). In an
order dated July 5, 2016, the Court denied Perry's motion
for habeas relief, and dismissed his petition with prejudice.
(Doc. 46). A final judgment issued on the same date. (Doc.
January 19, 2018, Perry filed the instant motion seeking
habeas relief under 28 U.S.C. § 2255. (Doc. 50). In his
current petition, Perry seeks habeas relief on various
grounds, including: (1)that his federal trial counsel was
ineffective for failing to request evidentiary hearings to
support a motion to suppress evidence, in violation of his
Fourth, Sixth, and Eighth Amendment rights (id. at
2); and (2) that his federal trial counsel told him that his
state case would be dropped if he accepted a federal plea
agreement. (Id. at 3).
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 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); see also Rule 9 of the
Rules Governing § 2255 Habeas Cases (“Before
presenting a second or successive motion, the moving party
must obtain an order from the appropriate court of appeals
authorizing the district court to consider the motion, as
required by 28 U.S.C. § 2255, para. 8.”).
“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 the motion should be dismissed.”
Lazo v. United States, 314 F.3d 571, 574 (11th Cir.
2002), vacated on other rounds sub nom. Gonzalez
v. Sec'y for the Dep't of Corr., 326 F.3d 1175
(11th Cir. 2003), superseding opinion, 366 F.3d 1253
(11th Cir. 2004) (en banc); see also United States v.
Holt, 417 F.3d 1172, 1175 (11th Cir. 2005) (per curiam)
(“Without authorization, the district court lacks
jurisdiction to consider a second or successive
petition.”); Allen v. United States, 2012 U.S.
Dist. LEXIS 73734 (S.D. Ala. Apr. 6, 2012).
the arguments contained in Perry's current petition, this
Court lacks jurisdiction to address his petition absent
permission from the Eleventh Circuit authorizing Perry to
file a successive petition. See Lazo, 314 F.3d at
574; Fredriksen v. United States, 2013 U.S. Dist.
LEXIS 127458 (S.D. Ala. Aug. 2, 2013). Perry does not allege,
and the record does not establish, that he sought and
obtained permission from the Eleventh Circuit before filing
the instant successive petition; thus, this Court is required
to dismiss his petition.
it is recommended that Petitioner Gareth Lorenzo Perry's
petition seeking habeas corpus relief pursuant to 28 U.S.C.
§ 2255 (doc. 50) be denied, and that judgment be entered
in favor of the Respondent, the United States of America.
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. §
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 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
petition does not warrant the issuance of a Certificate of
Appealability. Because Perry did not seek permission from the
Eleventh Circuit before filing his successive petition and
jurisdiction is lacking as a result, reasonable jurists could
not debate whether his petition should be resolved in a
different manner or deserves to proceed ...