Lee v. USA

Filing 4

ORDER dismissing 1 --motion to vacate/set aside/correct sentence (2255); denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the Clerk to CLOSE the case. Signed by Judge Steven D. Merryday on 4/16/2013. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

UNITED STATES OF AMERICA
v.

CASE NO. 8:06-cr-325-T-23MAP
8:13-cv-730-T-23MAP

DAVID EUGENE LEE
/

ORDER
Lee’s motion to vacate under 28 U.S.C. § 2255 (Doc. 1) challenges the validity
of his conviction for possessing with the intent to distribute fifty grams or
more of crack cocaine, for which offense Lee serves life imprisonment. Rule 4, Rules
Governing Section 2255 Cases, requires both a preliminary review of the motion to
vacate and a summary dismissal “[i]f it plainly appears from the face of the motion,
any attached exhibits, and the record of prior proceedings that the moving party is
not entitled to relief . . . .” Accord Wright v. United States, 624 F.2d 557, 558 (5th Cir.
1980)* (The summary dismissal of a Section 2255 motion was proper “[b]ecause in
this case the record, uncontradicted by [defendant], shows that he is not entitled to
relief.”); Hart v. United States, 565 F.2d 360, 361 (5th Cir. 1978) (“Rule 4(b) of § 2255

*

Unless later superseded by Eleventh Circuit precedent, a Fifth Circuit decision issued
before October 1, 1981, binds this court. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th
Cir. 1981) (en banc).

allows the district court to summarily dismiss the motion and notify the movant if <it
plainly appears from the face of the motion and any annexed exhibits and the prior
proceedings in the case that the movant is not entitled to relief.’”). Lee’s motion is
barred.
Lee’s earlier challenge to this same conviction was rejected on the merits
in 8:09-cv-104-T-23MAP. Lee is precluded from pursuing a second or successive
motion without permission from the Eleventh Circuit Court of Appeals. “Before a
second or successive application permitted by this section is filed in the district court,
the applicant shall move in the appropriate court of appeals for an order authorizing
the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Felker v.
Turpin, 518 U.S. 651, 664 (1996); Dunn v. Singletary, 168 F.3d 440, 442 (11th Cir.
1999). The earlier denial of the motion to vacate precludes Lee from again
challenging either his conviction or his sentence unless he obtains the required
permission from the circuit court. Felker v. Turpin, 518 U.S. 651, 664 (1996) (“The
new restrictions on successive petitions constitute a modified res judicata rule, a
restraint on what is called in habeas corpus practice <abuse of the writ.’”).
This new action is, therefore, a second or successive action that is subject to
specific restrictions. Section 2255 provides as follows:
A second or successive motion must be certified as provided in
section 2244 by a panel of the appropriate court of appeals to contain —
(1)

newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
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(2)

establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty
of the offense; or
a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme court, that was
previously unavailable.

Lee fails to represent that the circuit court has granted him the required permission.
Lee asserts entitlement to a new limitation under Section 2255(f)(3), which
permits a one-year limitation from “the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on collateral review . . . .”
Lee contends that Missouri v. Frye, ___ U.S. __, 132 S. Ct. 1399 (2012), and Lafler v.
Cooper, ___ U.S. ___, 132 S. Ct. 1376 (2012), establish a “right that has been newly
recognized by the Supreme Court.” Nevertheless, Lee’s motion to vacate is barred as
second or successive unless he first obtains permission from the circuit court. Lee
must convince the circuit court that he qualifies for a new limitation under Section
2255(h)(2), which permits a second or successive motion to vacate if based on “a new
rule of constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.”
Accordingly, the motion to vacate under 28 U.S.C. § 2255 (Doc. 1) is
DISMISSED. The clerk shall close this case.

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DENIAL OF BOTH A
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Lee is not entitled to a certificate of appealability (“COA”). 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). Rather, a district court must first issue
a COA. Section 2253(c)(2) permits issuing a COA “only if the applicant has made a
substantial showing of the denial of a constitutional right.” To merit a certificate of
appealability, Lee must show that reasonable jurists would find debatable both (1) the
merits of the underlying claims and (2) the procedural issues he seeks to raise. See 28
U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279
F.3d 926, 935 (11th Cir 2001). Because the motion to vacate is clearly second or
successive, Lee cannot meet Slack’s prejudice requirement. 529 U.S. at 484. Finally,
Lee is not entitled to appeal in forma pauperis because he is not entitled to a certificate
of appealability.
Accordingly, a certificate of appealability is DENIED. Leave to proceed in
forma pauperis on appeal is DENIED. Lee must pay the full $455 appellate filing fee
without installments unless the circuit court allows Lee to proceed in forma pauperis.
ORDERED in Tampa, Florida, on April 16, 2013.

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