Berry v. USA

Filing 3

ORDER: The motion to vacate, set aside, or correct an illegal sentence is DISMISSED, without prejudice, for lack of jurisdiction. The Clerk is directed to send Petitioner the Eleventh Circuit's application form for leave to file a second or s uccessive § 2255 motion under 28 U.S.C. § 2244(b). The Clerk shall terminate any pending motions and close this case. Because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis. Signed by Judge James S. Moody, Jr on 7/30/2013. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

STEVE BERRY,
Petitioner,
v.

CASE NO. 8:13-CV-1911-T-30MAP
CRIM. CASE NO. 8:06-CR-349-T-30MAP

UNITED STATES OF AMERICA,
Respondent.
________________________________/
ORDER
This matter is before the Court for consideration of Petitioner’s motion to vacate, set
aside, or correct an allegedly illegal sentence filed pro se pursuant to 28 U.S.C. § 2255 (CV
Dkt. 1). A motion to vacate must be reviewed prior to service on the United States. See Rule
4 of the Rules Governing § 2255 Cases. If the “motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief,” the motion is properly denied
without a response from the United States. 28 U.S.C. § 2255(b). Upon consideration of the
§ 2255 motion and the record, the Court concludes that the § 2255 motion must be dismissed
as successive.
BACKGROUND
Pursuant to a plea agreement, Petitioner pleaded guilty to conspiracy to possess with
intent to distribute five hundred grams or more of cocaine, contrary to the provisions of 21
U.S.C. §§ 846 and 841(b)(1)(B)(ii) (CR Dkts. 94, 108, 119, 173). Petitioner was sentenced
on February 21, 2007, to a 135-month term of imprisonment, to be followed by a 60 month
term of supervised release (CR Dkt. 173). Petitioner did not appeal his conviction or

sentence. Petitioner’s request for collateral relief pursuant to 28 U.S.C. § 2255 was
dismissed as time-barred1 by this Court on March 5, 2010 (CR Dkt. 287); see Berry v. United
States, Case No. 8:10-CV-79-T-30MAP (M.D. Fla. 2010). The Eleventh Circuit Court of
Appeals affirmed the dismissal of Petitioner’s § 2255 motion. Berry v. United States, 468
Fed. Appx. 924 (11th Cir. 2012) (unpublished).
DISCUSSION
Petitioner now returns to this Court seeking to vacate his sentence based upon Alleyne
v. United States, 133 S.Ct. 2151 (2013), and a claim that counsel was ineffective in failing
to file a notice of appeal. “[A] second or successive [§ 2255] motion must be certified as
provided in section 2244 by a panel of the appropriate court of appeals.” 28 U.S.C. §2255(h).
See also 28 U.S.C. § 2244(b)(3)(A). Because Petitioner has previously sought collateral
relief pursuant to § 2255, and he has not demonstrated that he has obtained permission from
the Eleventh Circuit to file a second or successive motion, this Court is without jurisdiction
to entertain the instant § 2255 motion. Darby v. Hawk-Sawyer, 405 F.3d 942, 944-45 (11th
Cir. 2005). This case will, therefore, be dismissed without prejudice to allow Petitioner the
opportunity to seek said authorization.
ACCORDINGLY, it is ORDERED that:
1.

The motion to vacate, set aside, or correct an illegal sentence is DISMISSED,

without prejudice, for lack of jurisdiction (CV Dkt. 1).
2.

The Clerk is directed to send Petitioner the Eleventh Circuit’s application form

for leave to file a second or successive § 2255 motion under 28 U.S.C. § 2244(b).

1

The Court also ruled in the alternative, on the merits, that Petitioner was entitled to no relief.

2

3.

The Clerk shall terminate any pending motions and close this case.

CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA
PAUPERIS DENIED
IT IS FURTHERED ORDERED that Petitioner is not entitled to a certificate of
appealability. A prisoner seeking a motion to vacate 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 certificate of appealability (COA). Id. “A [COA] may issue ... only if the
applicant has made a substantial showing of the denial of a constitutional right.” Id. at §
2253(c) (2). To make such a showing, a petitioner “must demonstrate that reasonable jurists
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, 335-36 (2003) (quoting Barefoot v. Estelle,
463 U.S. 880, 893 n. 4 (1983)). Petitioner cannot make 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 in Tampa, Florida on July 30, 2013.

SA:sfc
Copies furnished to:
Counsel of Record
Petitioner, pro se

3