United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE.
October 11, 2019, Eugene Lamar Pendleton, proceeding pro
se, filed a petition with this court using the form for
a petition for writ of habeas corpus under 28 U.S.C. §
2254. Doc. No. 1. In the petition, Pendleton challenges his
federal conviction for firearm possession, arguing that law
enforcement's search of his residence was not supported
by probable cause and that there was no evidence he was in
possession of the firearm that was the basis of his
conviction. For the reasons that follow, the
undersigned finds that Pendleton's petition constitutes a
successive § 2255 motion filed without the required
appellate court authorization. Absent that authorization,
this court lacks jurisdiction to consider the merits of
Pendleton's § 2255 motion.
petition attacks the fundamental legality of his conviction.
He therefore seeks relief that is appropriate only under 28
U.S.C. § 2255. See Gonzalez v. Crosby, 545 U.S.
524 (2005); McCarthan v. Dir. of Goodwill
Indus.-Suncoast, Inc., 851 F.3d 1076, 1081 (11th Cir.
2017). “Federal courts have long recognized that they
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. Jordan,
915 F.2d 622, 624-25 (11th Cir. 1990). As indicated,
Pendleton filed his pleading using the form for a petition
for writ of habeas corpus under 28 U.S.C. §
2254.However, regardless of the label Pendleton
attached to his pleading, this court finds his pleading is of
the same legal effect as, and should be construed as, a
motion to vacate, set aside, or correct sentence under 28
U.S.C. § 2255.
not Pendleton's first § 2255 motion challenging his
conviction for firearm possession obtained in Criminal No.
2:09cr27-MHT. In November 2012, Pendleton filed a § 2255
motion attacking his convictions, all obtained in the same
August 2009 jury trial, for possession of firearms in
furtherance of a drug trafficking crime, possession of
firearms by a convicted felon, and possession with intent to
distribute marijuana. See Civil Action No.
2:12cv1058-MHT. On March 25, 2015, this court denied that
§ 2255 motion with prejudice, deciding all claims
adversely to Pendleton. Id., Doc. Nos. 54 & 55
(Opinion and Final Judgment of District Court Adopting
Magistrate Judge's Recommendation [Doc. No. 50]).
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). Pendleton presents no
evidence of his having obtained authorization from the
Eleventh Circuit Court of Appeals to file a successive §
2255 motion. Because Pendleton 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 the
§ 2255 motion (Doc. No. 1) be DISMISSED for lack of
jurisdiction because Pendleton has not obtained the requisite
order from the Eleventh Circuit Court of Appeals authorizing
this court to consider his successive § 2255 motion. It
that the parties shall file any objections to this
Recommendation on or before December 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 in accordance with the provisions of 28
U.S.C. § 636(b)(1) shall 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 except upon grounds
of plain error or manifest injustice. Nettles v.
Wainwright, 677 F.2d 404 (5th Cir. 1982); 11th Cir. R.
3-1. See Stein v. Lanning Securities, Inc., 667 F.2d
33 (11th Cir. 1982). See also Bonner v. City of
Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc).
 This court's records in Criminal
No. 2:09cr27-MHT reflect that in August 2009, a jury found
Pendleton guilty of possession of firearms in furtherance of
a drug trafficking crime, in violation of 18 U.S.C. §
924(c)(1)(A)(i); possession of firearms by a convicted felon,
in violation of 18 U.S.C. § 922(g)(1); and possession
with intent to distribute marijuana, in violation of 21
U.S.C. § 841(a)(1). On July 16, 2010, the district court
sentenced Pendleton to 160 months in prison. Pendleton
appealed, and on December 2, 2011, the Eleventh Circuit Court