Trammell v. USA

Filing 8

ORDER - IT IS ORDERED overruling Trammell's Response to Report and Recommendationby Magistrate. (Doc. 7); IT IS FURTHER ORDERED adopting the Report and Recommendation of the Magistrate Judge as the Order of this Court. (Doc. 6) IT IS FURTHER ORD ERED denying Trammell's Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody because it is a second or successive petition over which this Court lacks jurisdiction. IT IS FURTHER ORDERED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be denied because denial of the Petition is justified by a plain procedural bar and jurists of reason would not find the ruling debatable. Signed by Judge Susan R Bolton on 7/3/12. (LAD)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,
Plaintiff/Respondent,

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vs.

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Sky Gary Trammell,
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Defendant/Movant.
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No. CR04-50178-PHX-SRB
CV12-00576-PHX-SRB
ORDER

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Defendant/Movant Sky Gary Trammell (Trammell) filed his pro se Motion to Vacate,
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Set Aside or Correct Sentence Pursuant to 22 U.S.C. § 2255 on March 19, 2012. The
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Government filed its response in opposition on April 30, 2012 arguing that the Motion to
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Vacate should be denied because it was a second/successive Petition for which Trammell
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failed to obtain proper appellate approval as required by 28 U.S.C. § 2255(h). Trammell
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filed a reply entitled "Defendant's Response to Government's Response to Defendant's
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Motion to Vacate Set Aside or Correct Sentence" on May 21, 2012.
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In the Magistrate Judge's Report and Recommendation the Magistrate Judge sets out
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the procedural history of this case. In 2001 Trammell was convicted in the District of Oregon
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after pleading guilty of one count of tax evasion and one count of mail fraud. After serving
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his term of imprisonment Trammell began serving a 36 month period of supervised release
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in 2004. On December 15, 2004 Trammell's supervision was transferred from Oregon to the
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District of Arizona. After his supervised release was revoked and he was ordered to serve

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four months in prison, Trammell failed to self-surrender for his prison sentence. Upon his

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apprehension Trammell was charged and eventually pled guilty to a single count of failing

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to surrender. US v. Trammell, 2:09CR0026-PHX-SRB. While in prison on his new offense

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and for his earlier supervised release violation, Trammell filed a §2255 motion challenging

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his Oregon conviction. That petition was ultimately denied in January 2010.

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Trammell's present Motion to Vacate was filed after revocations of supervised release

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in his Arizona conviction, 2:09CR0026-PHX-SRB, Doc.78, and in his Oregon conviction

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2:04-50178, Doc. 88. In this pending motion he again attacks his underlying conviction for

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tax evasion and mail fraud.

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In his Report and Recommendation the Magistrate Judge found that because Trammel

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previously challenged his conviction in a § 2255 action the pending Motion to Vacate is a

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second or successive motion for which Trammell failed to seek certification from the

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appropriate Circuit Court of Appeals before filing as required by 28 U.S.C. § 2255(h)

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rendering this Court without jurisdiction to consider the motion. The Magistrate Judge also

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noted that the motion would be timely if it had sought relief from the 2011 revocation of

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supervised release but the motion failed to allege any basis for relief from the 2011

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revocation. The Magistrate Judge recommended that Trammell's Motion to Vacate, Set

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Aside or Correct Sentence be denied.

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On June 13, 2012 Trammell timely filed a document entitled "Response to Report and

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Recommendation by Magistrate." That response requested that the Court consider his earlier

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reply entitled, "Response to the Government's Response to Defendant's Motion to Vacate Set

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Aside or Correct Sentence" as his response to the Report and Recommendation of the

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Magistrate Judge. There is nothing in that response that addresses this Court's jurisdiction

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over this second or successive Motion to Vacate or suggests that the Court has any power to

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consider it. Trammell also does not assert that he raised any claim for relief from the 2011

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revocation of supervised release.

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IT IS ORDERED overruling Trammell's Response to Report and Recommendation
by Magistrate. (Doc. 7)
IT IS FURTHER ORDERED adopting the Report and Recommendation of the
Magistrate Judge as the Order of this Court. (Doc. 6)

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IT IS FURTHER ORDERED denying Trammell's Motion to Vacate, Set Aside or

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Correct Sentence by a Person in Federal Custody because it is a second or successive petition

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over which this Court lacks jurisdiction.

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IT IS FURTHER ORDERED that a Certificate of Appealability and leave to proceed

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in forma pauperis on appeal be denied because denial of the Petition is justified by a plain

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procedural bar and jurists of reason would not find the ruling debatable.

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DATED this 3rd day of July, 2012.

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