United States District Court, S.D. Alabama, Southern Division
JERI MICHELLE MARKS BOP Reg. # 13964-003, Movant,
UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATIONS
Katherine P. Nelson, United States Magistrate Judge.
Michelle Marks, a federal prisoner proceeding without counsel
(i.e., pro se), has filed a Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255 dated
February 25, 2019 (Doc. 402), challenging the judgment
entered against her in the above-styled criminal action. The
assigned District Judge has referred the motion to the
undersigned Magistrate Judge for appropriate action.
See S.D. Ala. GenLR 72(b); (3/6/2019 electronic
reference). Under S.D. Ala. GenLR 72(a)(2)(R), the
undersigned is authorized to require responses, issue orders
to show cause and any other orders necessary to develop a
complete record, and to prepare a report and recommendation
to the District Judge as to appropriate disposition of the
§ 2255 motion, in accordance with 28 U.S.C. §
636(b)(1) and Rules 8(b) and 10 of the Rules Governing
Section 2255 Proceedings for the United States District
Courts. Upon consideration, the undersigned finds that
Mark's present § 2255 motion is due to be
DISMISSED without prejudice as an
unauthorized second or successive motion.
Second or Successive Motion
Marks filed pro se a motion dated August 23, 2016,
and entitled “Minor-role Amendment Reduction
3B1.1” (Doc. 362) (hereinafter, “the 2016
Motion”). By order entered November 18, 2016 (Doc.
374), the undersigned informed Marks that she could only seek
the relief sought in the 2016 Motion by requesting it in a
§ 2255 motion. In accordance with Castro v. United
States, 540 U.S. 375 (2003),  the undersigned advised
Marks that the Court intended to treat the 2016 Motion as a
§ 2255 motion, informed her that subsequent § 2255
motions would be subject to the second-or-successive
requirements of 28 U.S.C. § 2255(h) if the construed
motion was denied, and gave her a reasonable period in which
to either withdraw her motion or file an amended § 2255
motion that included all claims for relief she desired to
raise. (See Doc. 374). After that deadline passed
with no response from Marks, the undersigned entered a
recommendation that the Court treat the 2016 Motion as a
§ 2255 motion and deny it. (Doc. 376). Marks filed no
objections to that recommendation, and on March 3, 2017, the
Court adopted the recommendation and dismissed the motion
with prejudice. (Docs. 379, 380). Marks took no appeal of
that decision. Accordingly, the present § 2255 motion is
second or successive.
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…” Rule 9 of the Rules Governing Section
2255 Proceedings for the United States District Courts.
See also 28 U.S.C. § 2255(h) (“A second
or successive motion must be certified as provided in section
2244 by a panel of the appropriate court of appeals to
contain--(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.”); In re
Clayton, 829 F.3d 1254 (11th Cir. 2016) (“Charles
Clayton seeks permission to file a 28 U.S.C. § 2255
motion based on Johnson v. United States, --- U.S.
__, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Because Mr.
Clayton previously filed a § 2255 motion, his new motion
must be ‘certified as provided in section 2244 by a
panel of the appropriate court of appeals to contain ... a
new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.' 28 U.S.C. § 2255(h)(2).”);
Boyd v. United States, 754 F.3d 1298, 1301 (11th
Cir. 2014) (“If a court determines that a § 2255
motion is ‘second or successive,' the motion must
be certified by the court of appeals before the district
court may reach the merits of the motion.”).
“Without authorization, the district court lacks
jurisdiction to consider a second or successive
petition.” Farris v. United States, 333 F.3d
1211, 1216 (11th Cir. 2003) (per curiam). See also
Magwood v. Patterson, 561 U.S. 320, 330-31 (2010)
(“If an application is ‘second or
successive,' the petitioner must obtain leave from the
court of appeals before filing it with the district court.
See § 2244(b)(3)(A). The district court must dismiss any
claim presented in an authorized second or successive
application unless the applicant shows that the claim
satisfies certain statutory requirements. See §
2244(b)(4). Thus, if Magwood's application was
‘second or successive,' the District Court should
have dismissed it in its entirety because he failed to obtain
the requisite authorization from the Court of
Appeals.”). Here, there is no indication that Marks has
received such authorization prior to bring her present §
2255 motion (Doc. 402).Accordingly, the motion is due to be
DISMISSED without prejudice for lack of
Appeal In Forma Pauperis
appeal may not be taken in forma pauperis if the trial court
certifies in writing that it is not taken in good
faith.” 28 U.S.C. § 1915(a)(3).
A party demonstrates good faith by seeking appellate review
of any issue that is not frivolous when examined under an
objective standard. See Coppedge v. United States,
369 U.S. 438, 445, 82 S.Ct. 917, 921, 8 L.Ed.2d 21 (1962). An
issue is frivolous when it appears that “the legal
theories are indisputably meritless.” Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993) (citations
omitted). In other words, an IFP action is frivolous, and
thus not brought in good faith, if it is *860 “without
arguable merit either in law or fact.” Bilal v.
Driver, 251 F.3d 1346, 1349 (11th Cir. 2001). More
specifically, “arguable means capable of being
convincingly argued.” Sun v. Forrester, 939
F.2d 924, 925 (11th Cir. 1991) (internal quotations and
citations omitted). Nevertheless, where a “claim is
arguable, but ultimately will be unsuccessful, ” it
should be allowed to proceed. Cofield v. Ala. Pub. Serv.
Comm'n, 936 F.2d 512, 515 (11th Cir. 1991).
Ghee v. Retailers Nat. Bank, 271 Fed.Appx. 858,
859-60 (11th Cir. 2008) (per curiam) (unpublished). As
Marks's present § 2255 motion is clearly due to be
dismissed as an unauthorized second or successive motion
under established precedent, the undersigned finds that any
appeal of that decision would frivolous.
accordance with the foregoing analysis, it is
RECOMMENDED that Marks's Motion to
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. §
2255 dated February 25, 2019 (Doc. 402), be DISMISSED
without prejudice for lack of jurisdiction. It is
further RECOMMENDED that the Court certify
that any appeal by Marks of the dismissal of her second
§ 2255 motion would be without merit and therefore not
taken in good faith, thus denying her entitlement to appeal
in forma pauperis.
OF RIGHT TO FILE OBJECTIONS
of this report and recommendation shall be served on all
parties in the manner provided by law. Any party who objects
to this recommendation or anything in it must, within
fourteen (14) days of the date of service of this document,
file specific written objections with the Clerk of this
Court. See 28 U.S.C. § 636(b)(1); Rule 8(b) of
the Rules Governing Section 2255 Proceedings for the United
States District Courts; S.D. Ala. GenLR 72(c). The parties
should note that under Eleventh Circuit Rule 3-1, “[a]
party failing to object to a magistrate judge's findings
or recommendations contained in a report and recommendation
in accordance with the provisions of 28 U.S.C. §
636(b)(1) waives the right to challenge on appeal the
district court's order based on unobjected-to factual and
legal conclusions if the party was informed of the time
period for objecting and the consequences on appeal for
failing to object. In the absence of a proper objection,
however, the court may review on appeal for plain error if
necessary in the interests of justice.” 11th Cir. R.
3-1. In order to be specific, an objection must identify the
specific finding or ...