Rainer v. United States of America (INMATE 3)

Filing 9

ORDER directing as follows: (1) Petitioner's Objection is OVERRULED; (2) The court ADOPTS the Recommendation of the Magistrate Judge; (3) This § 2255 motion is DISMISSED, as the Petitioner has failed to obtain the requisite order from the Eleventh Circuit Court of Appeals authorizing this court to consider a successive § 2255 motion. Signed by Honorable Judge W. Harold Albritton, III on 1/28/15. (scn, )

IN THE UNITED STATES DISTRICT COURT
FORTHE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

LORENZO RAINER,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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CASE NO. 2:14-cv-624-WHA
(WO)

ORDER
This case is before the court on the Recommendation of the Magistrate Judge (Doc. #5),
entered January 12, 2015, and the Petitioner’s Objection (Doc. #8), filed on January 26, 2015.
Rainer objects to the Magistrate Judge’s Recommendation finding his § 2255 motion
filed in June 2014 to be successive. He maintains that because he was re-sentenced in October
2014 by a Federal District Court in the Northern District of Georgia -- which granted his 28
U.S.C. § 2241 habeas petition seeking relief under the "savings clause" in § 2255(e) -- that there
is a new "judgment" in his case, making his § 2255 motion a first motion challenging the
judgment. He cites the Supreme Court's holding in Magwood v. Patterson, 561 US 320 (2010),
to support this argument. Magwood, however, does not apply here because Rainer's § 2255
motion in this case was filed in June 2014, before the Georgia Federal Court re-sentenced him
(in Oct. 2014). He was in fact challenging his original judgment of conviction in this June 2014
§ 2255 motion, and this was his second § 2255 motion challenging that judgment.
Rainer has another § 2255 motion pending in this court, which he filed in November
2014 (Civil Action 2:14-cv-01136-WKW-SRW), after the Georgia Federal Court re-sentenced

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him. To the extent he challenges in that later action the intervening judgment that includes his
re-sentencing, that § 2255 motion may well not be successive in light of Magwood.
Following an independent evaluation and de novo review of the file in this case, this
court concludes that the Magistrate Judge correctly determined that the § 2255 motion Rainer
filed in the instant case, in June 2014, is a successive § 2255 motion. It did not attack the
October 2014 judgment, as it had not been entered when this § 2255 motion was filed; it attacked
his original judgment of conviction. Moreover, Rainer never amended the § 2255 motion in this
case. It is Rainer's § 2255 motion filed in Nov. 2014 that is possibly not successive.
Therefore, it is hereby ORDERED as follows:
1. Petitioner’s Objection is OVERRULED.
2. The court ADOPTS the Recommendation of the Magistrate Judge.
3. This § 2255 motion is DISMISSED, as the Petitioner has failed to obtain the requisite
order from the Eleventh Circuit Court of Appeals authorizing this court to consider a successive
§ 2255 motion.
DONE this 28th day of January, 2015.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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