United States District Court, M.D. Alabama, Southern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
Russ Walker United States Magistrate Judge
Ricky Randall Rex Smith (“Smith”) is before the
court on a pro se petition (Doc. No. 2) challenging
the life sentence imposed against him in Criminal No.
1:07cr183-WKW after he was convicted of producing child
pornography in violation of 18 U.S.C. § 2251(a). Smith
was sentenced under 18 U.S.C. § 3559(e), which mandates
a sentence of life imprisonment for federal sex offenders
convicted of repeated sex offenses against children.
See 18 U.S.C. § 3559(e). He argues that his
life sentence violates the Ex Post Facto Clause because
§ 3559(e) had not been enacted when he committed his
crime. Doc. No. 2 at 1-2. Smith purports to bring this action
under 28 U.S.C. § 1361, which pertains to petitions for
writs of mandamus. He seeks a court order vacating his
sentence and directing that he be resentenced “under
the applicable laws as they existed in 2000.” Doc. No.
2 at 4. For the reasons that follow, Smith's petition is
due to be dismissed as a successive 28 U.S.C. § 2255
motion filed without the required appellate court
petition, in essence, attacks the validity of his sentence in
this court. A motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255 is the proper mechanism
for a federal prisoner to raise a collateral attack on the
validity of a judgment or the sentence imposed. See
28 U.S.C. § 2255(a) & (e); United States v.
Holt, 417 F.3d 1172, 1174-75 (11th Cir. 2005);
Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.
1996). Therefore, regardless of Smith's labeling, his
petition is of the same legal effect as-and must be construed
as-a motion to vacate, set aside, or correct sentence under
28 U.S.C. § 2255. See United States v. Jordan,
915 F.2d 622, 624-25 (11th Cir. 1990) (federal courts have
“an obligation to look behind the label of a motion
filed by a pro se inmate and determine whether the motion is,
in effect, cognizable under a different remedial statutory
the fourth § 2255 motion filed by Smith attacking the
judgment of conviction and/or sentence in 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 & 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 dismissed that § 2255 motion as a
successive motion filed without the required appellate court
authorization. Id. (Doc. Nos. 3, 4 & 5).
filed a third § 2255 motion in June 2016, raising a
claim under Johnson v. United States, 135 S.Ct. 2551
(2015). See Smith v. United States, Civil Action No.
1:16cv531-WKW (Doc. No. 1). This court dismissed that §
2255 motion as a successive motion filed without the required
appellate court authorization. Id. (Doc. Nos. 15, 18
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.”).
has not provided the required certification from the Eleventh
Circuit, and there is no indication in the record that Smith
has obtained such a 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 ...