Rice v. United States Of America

Filing 2

ORDERED that the Clerk is DIRECTED to transfer this case directly to the Eleventh Circuit Court of Appeals, and then CLOSE the case. Signed by Magistrate Judge G. R. Smith on 9/19/2016. (loh)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION ROBERT LOUIS RICE, Movant, v. Case No. CV616-087 CR601-004 UNITED STATES OF AMERICA, Respondent. ORDER Robert Louis Rice pled guilty to, and thus was convicted of, violating 18 U.S.C. § 371 and 18 U.S.C. 2113(a) & (d), then sentenced to 293 months. CR601-004, docs. 60 & 64. He now challenges his conviction and sentence under 28 U.S.C. § 2255, and relies on Johnson v. United States , 576 U.S. ___, 135 S. Ct. 2551 (2015), made retroactive by Welch v. United States , ___ U.S. ___, 136 S. Ct. 1257 (2016). Doc. 95. Some knock-out problems arise, however. First, Rice claims to be challenging a 2002 South Carolina federal court judgment, not this Court’s judgment -- thus implicating venue. Doc. 95 at 3. Second and more importantly, he has (properly so, since he has moved for § 2255 relief in the past, doc. 92), filed with this Court only an “Application For Leave to File a Second or Successive Motion To Vacate [Etc.].” Doc. 95. The very title of that document reveals that Rice meant to file it with the Eleventh Circuit, not here. Doc. 95 (signature-filed on June 23, 2016, id. at 8). So, he erroneously mailed it here. Id. at 9. This Court’s Clerk, in turn, erroneously docketed it here -- as a §2255 motion. Rice had until June 26, 2016, to file a Johnson claim. In re Gomez , F.3d ___, 2016 WL 3971720 at * 3 (11th Cir. July 25, 2016); Brown v. United States , 2016 WL 4597538 at * 2 n.2 (S.D. Fla. Aug. 2, 2016). Given that time-bar, the Clerk is DIRECTED to transfer this case directly to the Eleventh Circuit Court of Appeals, and then CLOSE this case. 1 SO ORDERED, this 19th day of September, 2016. - UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA 1 It is unclear if he is challenging this Court’s judgment or another’s, but he can clarify that with the Eleventh Circuit when he receives a copy of this Order.

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