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)

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.