United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY, UNITED STATES MAGISTRATE JUDGE
Darren Lavon Smiley ("Smiley") is before the court
on a. pro se motion under 28 U.S.C. § 2255 to
vacate, set aside, or correct sentence. Doc. # 1.
November 16, 2005, a jury found Smiley guilty of possession
of a firearm by a convicted felon. See Criminal No.
2:05cr44-MEF. Sentence was imposed on March 30, 2007, with
Smiley receiving a term of 360 months' imprisonment, to run
concurrently to any state court sentences pending against
him. Smiley appealed, and on January 16, 2008, the Eleventh
Circuit affirmed his conviction and sentence. United
States v. Smiley, 263 Fed.Appx. 765 (11th Cir. 2008).
August 20, 2008, Smiley filed a.pro se motion under
28 U.S.C. § 2255 challenging his firearm conviction and
360-month sentence. See Civil Action No.
2:08cv690-MEF, Doc. #1. On September 30, 2008, this court
entered a judgment denying that § 2255 motion and
dismissing the action with prejudice. Id., Doc. # 8;
see also id., Docs. # 5 & 7.
§ 2255 motion, which was filed on January 26, 2019,
Smiley appears to challenge the adequacy of the legal
representation he received from counsel in his criminal
proceedings. See Doc. # 1 at 2-3. For the reasons
that follow, the Magistrate Judge finds that Smiley's
§ 2255 motion should be dismissed as a successive motion
filed without the required appellate court authorization.
noted above, Smiley has previously filed a § 2255 motion
challenging his 2005 firearm conviction and 360-month
sentence. That § 2255 motion was docketed as Civil
Action No. 2:08cv690-MEF. On September 30, 2008, this court
entered a final judgment denying the § 2255 motion with
prejudice. Smiley's instant § 2255 motion is
his second such motion challenging his 2005 conviction and
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 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).
presents no evidence of his having obtained authorization
from the Eleventh Circuit Court of Appeals to file a
successive § 2255 motion. Because Smiley has not
obtained the required authorization from the appellate court,
this court lacks jurisdiction to consider the merits of his
present § 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
Smiley's successive § 2255 motion (Doc. # 1) be
summarily dismissed because Smiley has not received
permission from the ...