Pegg v. United States of America
OPINION AND ORDER granting 12 motion to dismiss; dismissing 1 Motion to vacate/set aside/correct sentence (2255) for lack of jurisdiction. The Clerk shall enter judgment accordingly, place a copy of the judgment in the corresponding criminal case (Case No. 2:94-cr-38-FTM-29CM), and close the civil file. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 11/13/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOE HARRY PEGG,
Case No: 2:16-cv-558-FtM-29CM
Case No. 2:94-CR-38-FTM-29CM
UNITED STATES OF AMERICA,
OPINION AND ORDER
This matter comes before the Court on petitioner’s Motion
Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct
Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc.
#613) 1 Memorandum of Law and Brief (Cv. Doc. #2) filed on July 14,
The government filed a Motion to Dismiss (Cv. Doc. #12) in
response to the motion, and petitioner filed a Motion in Opposition
(Cv. Doc. #14).
Petitioner’s motions are due to be dismissed, and
the Court finds no evidentiary hearing is required.
On November 2, 1994, a federal grand jury in Fort Myers,
Florida returned a two-count [amended] Indictment (Cr. Doc. #152)
Court will refer to the docket of the civil habeas case as
“Cv. Doc.”, and will refer to the docket of the underlying criminal
case as “Cr. Doc.”
marijuana, and with aiding and abetting the attempt to import
Petitioner entered a plea of guilty to Count One
pursuant to a Plea Agreement (Cr. Doc. #179) with Count Two to be
dismissed at the time of sentencing.
Judgment (Cr. Doc. #312) was
issued on February 20, 1996, and petitioner was sentenced to a
term of imprisonment of 360 months as to Count One with credit for
time served, followed by a term of supervised release.
On February 2, 1007, petitioner filed a Motion Under 28 U.S.C.
Section 2255 to Vacate, Set Aside or Correct Sentence by a Person
in Federal Custody (Cr. Doc. #348).
The motion was considered on
the merits and denied on April 28, 1999.
(Cr. Doc. #413.)
12, 1999, petitioner filed a Notice of Appeal (Cr. Doc. #415) from
the Order, and on June 12, 2001 that decision was affirmed.
v. United States, 253 F.3d 1274 (11th Cir. 2001).
banc was denied, Pegg v. United States, 273 F.3d 395 (11th Cir.
2001), as was petitioner’s petition for writ.
Pegg v. United
States, 535 U.S. 970 (2002).
On January 11, 2006, the Eleventh Circuit denied petitioner’s
application for leave to file a second or successive motion based
on Booker v. United States, 543 U.S. 2002 (2005) because Booker
had not been made retroactive on collateral review.
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In July 2016, more than a decade later, petitioner filed a
Motion for Declaratory Judgment and Conditional Motion to Vacate
Criminal Judgment & Conviction (Cr. Doc. #611) and Motion Under 28
U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by a
Person in Federal Custody (Cv. Doc. #1; Cr. Doc. #613).
government has moved to dismiss the Motion Under 2255 as both
successive and time-barred, and alternatively because it has no
1. Motion for Declaratory Judgment and to Vacate Criminal
Judgment and Conviction
As to the motion filed in the criminal case, petitioner seeks
a declaration pursuant to 28 U.S.C. § 2201 that marijuana is a
Petitioner further seeks an Order under Fed. R. Civ. P. 60(b),
based on the declaration, that the criminal judgment is void for
want of jurisdiction.
This motion will be denied for two reasons.
One, the Rules of Civil Procedure do not apply in a criminal case
and therefore the Court does not have jurisdiction to reconsider
United States v. Fair, 326 F.3d 1317 (11th Cir.
2003); United States v. Mosavi, 138 F.3d 1365 (11th Cir. 1998).
The Court has no inherent power to correct an illegal sentence,
but rather must look to the specific parameters of federal statutes
and the Federal Rules of Criminal Procedure.
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United States v.
contrary to petitioner’s belief, marijuana remains a Schedule I
21 U.S.C. § 812(c)(10).
2. Motion for habeas relief under 28 U.S.C. § 2255
Setting aside the obvious untimeliness of the motion from the
February 20, 1996 Judgment, the Court finds that the motion is due
to be dismissed because petitioner previously filed for collateral
relief, which was denied, and has not received permission to file
a second or successive motion.
To file a second or successive Motion under Section 2255,
petitioner must obtain certification from the Eleventh Circuit
Court of Appeals.
28 U.S.C. § 2255(h) 1; Gilbert v. United States,
640 F.3d 1293, 1308 (11th Cir. 2011), cert. denied, 132 S. Ct.
petitioner does not indicate that he further sought or obtained
Section 2255(h) provides that a second or successive motion must
be certified 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
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
28 U.S.C. § 2255(h).
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such certification from the Eleventh Circuit.
In the absence of
an order authorizing the undersigned to consider a second or
successive motion, the current Motion must be dismissed for lack
Farris v. United States, 333 F.3d 1211, 1216
(11th Cir. 2003); El-Amin v. United States, 172 F. App’x 942, 946
(11th Cir. 2006).
The government’s motion to dismiss will be
granted, and petitioner’s motion dismissed.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
Conditional Motion to Vacate Criminal Judgment & Conviction
(Cr. Doc. #611) is dismissed for lack of jurisdiction.
GRANTED and petitioner’s Motion Under 28 U.S.C. Section
2255 to Vacate, Set Aside or Correct Sentence by a Person
dismissed for lack of jurisdiction.
3. The Clerk of the Court shall enter judgment dismissing the
Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside
or Correct Sentence by a Person in Federal Custody (Cv.
Doc. #1; Cr. Doc. #613) for lack of jurisdiction, and close
the civil file.
The Clerk is further directed to place a
copy of the civil Judgment in the criminal file.
IT IS FURTHER ORDERED:
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A CERTIFICATE OF APPEALABILITY (COA) AND LEAVE TO APPEAL IN
FORMA PAUPERIS ARE DENIED.
A prisoner seeking a writ of habeas
corpus has no absolute entitlement to appeal a district court’s
denial of his petition.
28 U.S.C. § 2253(c)(1); Harbison v. Bell,
556 U.S. 180, 183 (2009).
“A [COA] may issue . . . only if the
applicant has made a substantial showing of the denial of a
28 U.S.C. § 2253(c)(2).
To make such a
would find the district court’s assessment of the constitutional
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282
(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or
that “the issues presented were adequate to deserve encouragement
to proceed further,” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (citations omitted).
Petitioner has not made the requisite
showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate
of appealability, he is not entitled to appeal in forma pauperis.
DONE and ORDERED at Fort Myers, Florida, this
of November, 2017.
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