Gwyn v. USA

Filing 2

ORDER dismissing without prejudice 1 Motion to vacate/set aside/correct sentence (2255). 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). The Clerk shall terminate any and all 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 4/1/2014. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

DURWOOD MILTON GWYN,
Petitioner,
v.

CASE NO. 8:14-CV-754-T-30MAP
CRIM. CASE NO. 8:08-CR-331-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 dismissed
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 an unauthorized successive motion.
BACKGROUND
Petitioner pleaded guilty to possession with the intent to distribute 5 grams or more
of cocaine base, and distribution of cocaine base (CR Dkts. 18, 19, 21). Petitioner was
sentenced to a 262-month term of imprisonment, to be followed by a 96-month term of

supervised release (CR Dkts. 20, 21). Petitioner did not appeal his convictions and
sentences. Petitioner’s request for collateral relief pursuant to 28 U.S.C. § 2255 was denied
by this Court on July 15, 2010 (CR Dkt. 30); see Gwyn v. United States, Case No.
8:10-cv-395-T-30MAP (M.D. Fla. 2010).1
DISCUSSION
Petitioner now returns to this Court seeking to vacate his sentence based upon Spencer
v. United States, 727 F.3d 1076, 1080 (11th Cir. 2013).2 “[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 Court of Appeals 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). The Clerk is directed to terminate

1
Petitioner’s second request for collateral relief was dismissed as a second § 2255 motion on August
22, 2013. See Gwyn v. United States, Case No. 8:13-cv-2149-T-30MAP (M.D. Fla. 2013).
2

Spencer was vacated, and rehearing, en banc, granted by Spencer v. United States, 2014 U.S. App.
LEXIS 4315 (11th Cir. Fla., Mar. 7, 2014).

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from pending status the § 2255 motion (CR Dkt. 42) filed in the corresponding criminal case
number 8:08-CR-331-T-30MAP.
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).
3.

The Clerk shall terminate any and all 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 motion. 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)). When a district court dismisses a federal habeas petition on
procedural grounds without reaching the underlying constitutional claim, a COA should issue
only when a petitioner shows “that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that jurists of reason

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would find it debatable whether the district court was correct in its procedural ruling.” Slack,
529 U.S. at 484. Because the instant § 2255 motion is clearly a successive motion, Petitioner
cannot make the requisite showing in these circumstances. Finally, because Petitioner is not
entitled to a COA, he is not entitled to appeal in forma pauperis.
DONE and ORDERED in Tampa, Florida on April 1, 2014.

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

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