United States District Court, M.D. Alabama, Eastern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
STEPHEN M. DOYLE, UNITED STATES MAGISTRATE JUDGE
the court is petitioner Bradley Wayne Stokes's pro se
motion under 28 U.S.C. § 2255 to vacate, set aside, or
correct sentence by a person in federal custody. Doc. No. 1.
In June 2009, Stokes pled guilty to several federal firearm
offenses, including three counts of violating 18 U.S.C.
§ 922(g), which prohibits possession of a firearm by a
convicted felon. See No. 3:08-cr-189-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 § 2255 motion challenging his
convictions for possessing a firearm as a convicted felon, in
violation of 18 U.S.C. § 922(g). He appears to argue
that his § 922(g) convictions should be vacated based on
a “new rule of law” announced in Rehaif v.
United States, 139 S.Ct. 2191 (2019), which requires
that the government prove that a defendant knowingly violated
each material element of § 922(g). See Doc. No.
1 at 4. Stokes maintains that the holding in Rehaif
has been made retroactive to cases on collateral
review. Id. Stokes also argues that his
sentence should be reduced based on his post-sentencing
rehabilitative measures. Doc. No. 1 at 5. For the reasons
that follow, Stokes's motion is due to be dismissed as a
successive § 2255 motion filed without the required
appellate court authorization.
has filed a previous § 2255 motion challenging his
§ 922(g) convictions. He filed his first § 2255
motion in October 2012. See Civil Action No.
3:12-cv-925-MHT (Doc. No. 1). 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 authorizing this court to
consider a successive § 2255 motion.
that the parties shall file any objections to this
Recommendation or before September 20, 2019.
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 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 ...