United States District Court, M.D. Alabama, Eastern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE.
the court is petitioner Bradley Wayne Stokes's pro
se motion to correct plain error. Doc. No. 2. In June
2009, Stokes pleaded guilty to several federal firearm
offenses, including three counts of violating 18 U.S.C.
§ 922(g)(1), which prohibits possession of a firearm by
a convicted felon. See No. 3:08cr189-MHT. On June
10, 2010, the district court sentenced Stokes to 200 months
in prison. Stokes took no direct appeal. He later
filed an initial motion under 28. U.S.C. § 2255, and it
was denied on October 14, 2014. See Civil Action No.
has now filed the present motion arguing that the district
court was without jurisdiction to impose his sentence and
that his counsel was ineffective for failing to raise this
claim. He purports to bring this motion under Rule 52(b) of
the Federal Rules of Criminal Procedure. For the reasons that
follow, Stokes's motion is due to be dismissed as a
successive 28 U.S.C. § 2255 motion filed without the
required appellate court authorization.
52(b) of the Federal Rules of Criminal Procedure is
“intended for use on direct appeal” and is
inapplicable “when a prisoner launches a collateral
attack against a criminal conviction after society's
legitimate interest in the finality of the judgment has been
perfected by the expiration of the time allowed for direct
review or by the affirmance of the conviction on
appeal.” United States v. Frady, 456 U.S. 152,
motion to correct plain error is clearly a collateral attack
on the validity of his sentence. 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 Stokes's labeling, the
instant motion 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 framework”); United
States v. Hernandez, 369 Fed.Appx. 72, 73 (11th Cir.
2010 (“To determine whether a pro se motion is
actually a second or successive § 2255 motion, we
examine the content of the filing and the relief sought, not
the label placed on the motion.”).
has filed a previous § 2255 motion. He filed his first
§ 2255 motion in October 2012. See Doc. No. 1
in Civil Action No. 3:12cv925-MHT. On October 14, 2014, this
court denied Stokes's § 2255 motion and dismissed
the 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. 10, 11 & 12
[Recommendation of Magistrate Judge; Opinion Adopting
Recommendation; and Final Judgment]).
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 Stokes
has obtained the required certification authorizing this
court to consider his successive § 2255 motion.
Accordingly, this court lacks jurisdiction to consider
Stokes'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
Stokes has failed to obtain the requisite order from the
Eleventh Circuit Court of Appeals ...