Allen v. United States of America

Filing 7

ORDER denying 6 Motion for Reconsideration. Signed by Judge John E. Steele on 5/8/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
GARY LIVINGSTON ALLEN,
Petitioner,
v.

Case No: 2:17-cv-93-FtM-29MRM
Case No. 2:03-CR-74-FTM-29

UNITED STATES OF AMERICA,
Respondent.

ORDER
This matter comes before the Court on petitioner's Motion for
Reconsideration Pursuant to Rule 59(e) of the Federal Rules of
Civil Procedure (Doc. #6) filed on March 8, 2017.

In this case,

petitioner seeks reconsideration of the Court’s Opinion and Order
(Doc. #4) dismissing his Motion Under Title 28 U.S.C. § 2255(f)(4)
for lack of jurisdiction because petitioner did not first obtain
certification from the Eleventh Circuit to file a successive
motion. 1

Allen v. United States, No. 2:03-CR-74-FTM-29, 2017 WL

631546 (M.D. Fla. Feb. 15, 2017).

1 On July 6, 2016, petitioner was denied leave to file a
successive motion based on Johnson v. United States, 135 S. Ct.
2551(2015) because it had no impact on § 851.

In the Opinion and Order (Doc. #4), the Court noted that
petitioner’s previous Motion Under 28 U.S.C. Section 2255 to
Vacate, Set Aside or Correct Sentence by a Person in Federal
Custody (Case No. 2:07-cv-574-FTM-29DNF, Doc. #1) had been denied
on the merits, and also noted “in the alternative, that nothing in
Clarke suggested that the law had changed regarding 21 U.S.C. §
841.”

Id. at Doc. #34; Allen v. United States, No. 2:03-CR-74-

FTM-29, 2017 WL 631546, at *2 (M.D. Fla. Feb. 15, 2017).
In this § 2255 case, petitioner seeks reconsideration of the
dismissal

for

lack

of

jurisdiction

arguing

that

provides a basis to allow the successive petition.

2255(f)(4)
Petitioner

argues that Clarke 2 is a new fact for purposes of 28 U.S.C. §
2255(f)(4), and that the motion should not have been dismissed as
successive,
decision.

and

considered

(Doc. #6.)

as

timely

filed

from

the

Clarke

The Court has considered the application

of Clarke, and found no merit. 3

The motion will be denied in this

case.

2 Clarke v. United States, 184 So. 3d 1107 (Fla. 2016).
3 More specifically, the Court found:
A “conviction” under the federal felon-inpossession statute is by federal statute
defined by reference to state law. 18 U.S.C.
§921(a)(20). In contrast, the sentencing
enhancement under 21 U.S.C. § 841 defines

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In the alternative, petitioner asks that the Court construe
his motion for a writ of error coram nobis.

“The writ of error

coram nobis is an extraordinary remedy of last resort available
only

in

compelling

justice.”
2000).

circumstances

where

necessary

to

achieve

United States v. Mills, 221 F.3d 1201, 1203 (11th Cir.

Newly discovered evidence is not a compelling circumstance

warranting relief, United States v. Mayer, 235 U.S. 55, 69 (1914),
and in any event, coram nobis relief was abolished in civil cases,
Mills, 221 F.3d at 1203 n.2.

Further, coram nobis relief requires

petitioner to not still be in custody.

United States v. Garcia,

181 F.3d 1274, 1274 (11th Cir. 1999) (citing United States v.
Brown, 117 F.3d 471, 475 (11th Cir. 1997)).

Since plaintiff has

already filed a motion under 28 U.S.C. § 2255, and therefore the
application for coram nobis relief cannot be treated as a § 2255
motion, relief will be denied.
Accordingly, it is hereby
ORDERED:

“conviction” with reference to federal law.
Nothing in Clarke suggests that the Eleventh
Circuit has changed its law regarding § 841.
(Case No. 2:07-cv-574-FTM-29DNF, Doc. #34.)

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Petitioner's

Motion

for

Reconsideration

Pursuant

to

Rule

59(e) of the Federal Rules of Civil Procedure (Doc. #6) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
May, 2017.

Copies:
Petitioner
AUSA

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8th

day of