United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY MAGISTRATE JUDGE
matter is before the court upon Orestes Cabrera's
“Petitioning for Mandamus All Writ Act 28 U.S.C.
1651(a)” (ECF No. 249), in which Cabrera attempts to
seek mandamus relief to challenge the voluntariness of his
guilty plea. His request should be denied.
November of 2008, Cabrera pleaded guilty pursuant to a
written plea agreement to conspiracy to distribute and
possess with intent to distribute five kilograms or more of
cocaine, and possession with intent to distribute five
hundred grams or more of a mixture and substance containing a
detectable amount of cocaine on a date certain (ECF Nos. 80,
93). On December 10, 2008, the court appointed Spiro Kypreos
to replace Randall Lockhart as counsel of record in this case
(ECF No. 86). Mr. Kypreos subsequently filed a motion to
permit Cabrera to withdraw his guilty plea (ECF No. 100). The
district court orally denied the motion after a hearing, and
it sentenced Cabrera to a term of 276-months imprisonment
(ECF Nos. 113, 115, 134, 136). Cabrera appealed. The Eleventh
Circuit affirmed the denial of the motion to withdraw the
guilty plea (ECF No. 153), and the Supreme Court denied
Cabrera's petition for a writ of certiorari (ECF No.
filed a motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255 (ECF No. 177). The district
court adopted the recommendation of the undersigned that the
motion be denied, over Cabrera's objection, and it also
denied a certificate of appealability (ECF Nos. 191-194). The
Eleventh Circuit found the district court's ruling to be
correct and denied a certificate of appealability (ECF No.
then unsuccessfully moved for Rule 60(b) relief (ECF Nos.
204, 205, 207, 208). Neither the district court nor the
appellate court issued a certificate of appealability (ECF
Nos. 220, 221).
district court later reduced Cabrera's sentence from 276
months to 221 months on August 4, 2015 (ECF Nos. 226, 227).
then filed two other motions attempting to challenge his
sentence including a “Request to Vacate Count One
Sentence and Conviction” (ECF No. 231), and a Motion
titled “Summary Judgment 28 U.S.C. 56(a) Requested for
Claimant” (ECF No. 234). These motions were denied (ECF
No. 236), and the appeal thereof was dismissed for want of
prosecution (ECF No. 248).
now states that he seeks to “challenge Doc. #100 [the
motion to withdraw guilty plea filed by Attorney Kypreos]
with the all writ act of a mandamus” (ECF No. 249 at
1). Cabrera appears to believe that he has a claim under
Padilla v. Kentucky, 559 U.S. 356 (2010). Appended
to his motion is a copy of the Eleventh Circuit's order
denying his application for leave to file a second or
successive § 2255 motion (ECF No. 249 at 4-6). In its
order, the Eleventh Circuit notes that Padilla was
decided before Cabrera filed his first § 2255 motion,
and as such did not authorize the filing of a second or
successive motion (ECF No. 249 at 6). Cabrera notes that the
appellate court did not say that he did not
have a claim under Padilla, and thus seeks to pursue
this claim pursuant to the All Writs Act.
Supreme Court has noted that “[t]he All Writs Act is a
residual source of authority to issue writs that are not
otherwise covered by statute. Where a statute specifically
addresses the particular issue at hand, it is that authority,
and not the All Writs Act, that is controlling.”
Carlisle v. United States, 517 U.S. 416, 429 (1996)
(quoting Pennsylvania Bureau of Correction v. United
States Marshals Service, 474 U.S. 34, 43 (1985)).
Mandamus relief, pursuant to 28 U.S.C. § 1361 is an
action to compel an officer or employee of the United States
or any agency thereof to perform a duty owed to the
plaintiff. 28 U.S.C. § 1361. It is appropriate only
when: (1) the plaintiff has a clear right to the relief
requested; (2) the defendant has a clear duty to act; and (3)
no other adequate remedy is available. Hoever v. Dept. of
Homeland Sec., 637 F. App'x 565, 566 (11th Cir.
2016) (quoting Cash v. Barnhart, 327 F.3d 1252, 1258
(11th Cir. 2003)). “The party seeking mandamus has the
burden of demonstrating that his right to the writ is clear
and indisputable.” Hoever, 637 F. App'x at
566 (citing In re BellSouth Corp., 334 F.3d 941, 953
(11th Cir. 2003)). A plaintiff cannot resort to the
extraordinary remedy of mandamus where there is an adequate
alternative “avenue for relief, ” such as where a
statutory method of appeal has been prescribed.
Hoever, 637 F. App'x at 566 (citing Lifestar
Ambulance Serv., Inc. v. United States, 365 F.3d 1293,
1295 (11th Cir. 2004)).
motion is an attempt to circumvent the procedural bar caused
by his failure to raise his Padilla claim in his
initial § 2255 motion, as well as the Eleventh
Circuit's denial of his motion for leave to file a second
or successive motion pursuant to 28 U.S.C. § 2255. A
petition for writ of mandamus is not a tool that may be used
in this manner. As previously noted by the Eleventh Circuit,
Padilla was decided before Cabrera filed his first
§ 2255 motion, and the claim could have been raised at
that time. Therefore, Cabrera's motion should be denied.
11(a) of the Rules Governing Section 2255 Proceedings
provides that “[t]he district court must issue or deny
a certificate of appealability when it enters a final order
adverse to the applicant, ” and if a certificate is
issued “the court must state the specific issue or
issues that satisfy the showing required by 28 U.S.C. §
2253(c)(2).” A timely notice of appeal must still be
filed, even if the court issues a certificate of
appealability. Rule 11(b), Rules Governing Section 2255
not clear that a certificate of appealability would be
required for Cabrera to appeal an adverse ruling on his
motion. In any event, if one were to be required, the court
finds no substantial showing of the denial of a
constitutional right. § 2253(c)(2); Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000) (explaining how to
satisfy this showing) (citation omitted). Therefore, it is
also recommended that the court deny a certificate of
appealability in its final order.
second sentence of Rule 11(a) provides: “Before
entering the final order, the court may direct the parties to
submit arguments on whether a certificate should
issue.” If there is an objection to this recommendation
by either party, that party may bring this argument to the