United States District Court, M.D. Alabama, Southern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
Russ Walker United States Magistrate Judge.
the court is the 28 U.S.C. § 2255 motion filed on June
23, 2016, by federal inmate Rickey Randell Rex Smith
(“Smith”). Doc. No. 1. Smith contends that the
U.S. Supreme Court's holding in Johnson v. United
States, 576 U.S. __, 135 S.Ct. 2551 (2015),
invalidates the life sentence imposed by
this court in 2010 upon Smith's conviction for production
of child pornography in violation of 18 U.S.C. §
2251(a). See United States v. Smith, Case
No. 1:07cr183-WKW. For the reasons that follow, Smith's
motion is due to be dismissed as a successive § 2255
the third § 2255 motion filed by Smith attacking the
judgment of conviction and sentence in Case No.
1:07cr183-WKW. Smith filed his first § 2255 motion in
November 2012. See Smith v. United States, Civil
Action No. 1:12cv1006-WKW (Doc. No. 1). On March 19, 2015,
this court denied Smith's § 2255 motion and
dismissed his action with prejudice on grounds that the
motion was time-barred under the one-year limitation period
in 28 U.S.C. § 2255(f). Id. (Doc. Nos. 31, 36,
and 37 (Recommendation of Magistrate Judge; Order Adopting
Recommendation; and Final Judgment)).
filed a second § 2255 motion in June 2015. See Smith
v. United States, Civil Action No. 1:15cv521-WKW (Doc.
No. 2). This court summarily dismissed that § 2255
motion as a successive motion filed without the required
appellate court authorization. Id. (Doc. Nos. 3, 4,
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) provides that, to file a second or
successive § 2255 motion in the district court, the
movant must first move in the appropriate court of appeals
for an order authorizing the district court to consider the
motion. See 28 U.S.C. § 2244(b)(3)(A). The
appellate court, in turn, must certify that the second or
successive § 2255 motion contains “(1) newly
discovered evidence that, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that no reasonable factfinder
would have found the movant guilty of the offense; or (2) a
new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.” See 28 U.S.C. § 2255(h).
bar on second or successive [§ 2255] motions is
jurisdictional.” In re Morgan, 717 F.3d 1186,
1193 (11th Cir. 2013). A federal district court lacks
jurisdiction to consider a successive § 2255 motion
where the movant fails to obtain the requisite permission
from the appellate court to file a successive motion.
Farris v. United States, 333 F.3d 1211, 1216 (11th
Cir. 2003). For purposes of the AEDPA's successive-motion
rules, the dismissal of an initial § 2255 motion as
untimely counts and renders a subsequent § 2255 motion
“successive.” See, e.g., Villanueva v. United
States, 346 F.3d 55, 59-61 (2d Cir. 2003) (“We
… hold that a first § 2255 petition that has
properly been dismissed as time-barred under AEDPA has been
adjudicated on the merits, such that authorization from this
court is required before filing a second or successive §
2255 petition.”); Altman v. Benik, 337 F.3d
764, 766 (7th Cir. 2003) (“We hold today that a prior
untimely petition does count [for purposes of 28 U.S.C.
§ 2244(b)] because a statute of limitations bar is not a
curable technical or procedural deficiency but rather
operates as an irremediable defect barring consideration of
the petitioner's substantive claims.”).
October 17, 2016, the government asserted that Smith had
“failed to obtain the necessary certification from the
Eleventh Circuit” to file a successive § 2255
motion. Doc. No. 11 at 17. On October 18, 2016, this court
entered an order directing Smith to show cause why his §
2255 motion “should not be dismissed as successive and
filed without Eleventh Circuit authorization.” Doc. No.
12 at 1. Smith did not respond to the court's order.
has not provided the required certification from the Eleventh
Circuit, and there is no indication in the record that Smith
has obtained the required certification authorizing this
court to consider his successive § 2255 motion. Thus,
this court lacks jurisdiction to consider Smith's
successive § 2255 motion, and the motion is due to be
dismissed for lack of jurisdiction. See, e.g.,
Farris, 333 F.3d at 1216; Boone v. Secretary, Dept.
of Corrections, 377 F.3d 1315, 1317 (11th Cir. 2004).
it is the RECOMMENDATION of the magistrate judge that the
§ 2255 motion be dismissed for lack of jurisdiction, as
Smith has failed to obtain the requisite order from the
Eleventh Circuit Court of Appeals authorizing this court to
consider a successive § 2255 motion.
that the parties shall file any objections to this
Recommendation or before February 5, 2018. A party must
specifically identify the factual findings and legal
conclusions in the Recommendation to which objection is made;
frivolous, conclusive, or general objections will not be
considered. Failure to file written objections to the
Magistrate Judge's findings and recommendations under the
provisions of 28 U.S.C. § 636(b)(1) will bar a party
from a de novo determination by the District Court
of legal and factual issues covered in the Recommendation and
waives the right of the party to challenge on appeal the
District Court's order based on unobjected-to factual and
legal conclusions accepted or adopted by the District Court
except upon grounds of plain error or manifest injustice.