United States District Court, M.D. Florida, Tampa Division
D. MERRYDAY UNITED STATES DISTRICT JUDGE.
paper (Doc. 1), entitled “Motion for Sentence Reduction
Pursuant to U.S.C. 3582(c)(2)(1)(A)(I) [sic ] and
4205(G) As. 5050.49 [sic] also Section 5H1.4 USSG
and the Fair Sentencing Act of 2011, ” is construed as
a motion under 28 U.S.C. § 2255 (Doc. 1) to vacate.
Aybar was convicted of conspiring to distribute and to
possess with the intent to distribute five kilograms or more
of cocaine, for which he is imprisoned for 131 months. Rule
4, Rules Governing Section 2255 Cases, requires both a
preliminary review of the motion to vacate and a summary
dismissal “[i]f it plainly appears from the face of the
motion, any attached exhibits, and the record of prior
proceedings that the moving party is not entitled to relief .
. . .” Accord Wright v. United States, 624
F.2d 557, 558 (5th Cir. 1980) (finding the summary dismissal of
a Section 2255 motion was proper “[b]ecause in this
case the record, uncontradicted by [defendant], shows that he
is not entitled to relief”); Hart v. United
States, 565 F.2d 360, 361 (5th Cir. 1978) (“Rule
4(b) [Rules Governing § 2255 Proceedings], allows the
district court to summarily dismiss the motion and notify the
movant if ‘it plainly appears from the face of the
motion and any annexed exhibits and the prior proceedings in
the case that the movant is not entitled to relief . . .
.'”). See United States v. Deal, 678 F.2d
1062, 1065 (11th Cir. 1982) (citing Wright and
Hart). Aybar's motion is barred.
“moves . . . for a sentence reduction due to
ineffective assistance of counsel[, ] health issues[, ] and
guideline errors due to ineffective assistance of
counsel.” (Doc. 1 at 1) Affording his motion a generous
interpretation, Aybar seeks relief both under 28 U.S.C.
§ 2255 based on counsel's alleged ineffectiveness
and under 28 U.S.C. § 3582 based on his failing health.
Aybar's earlier motion under Section 2255 was denied in
8:13-cv-343-T-23TGW and he cannot pursue a second or
successive motion under Section 2255 without authorization
from the Eleventh Circuit Court of Appeals. “Before a
second or successive application permitted by this section is
filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application.” 28 U.S.C.
§ 2244(b)(3)(A). Felker v. Turpin, 518 U.S.
651, 664 (1996); Dunn v. Singletary, 168 F.3d 440,
442 (11th Cir. 1999). The present request of relief based on
the alleged ineffective assistance of counsel is, therefore,
a second or successive action that is subject to specific
restrictions because a district court lacks jurisdiction to
review a second or successive motion without the requisite
authorization from the circuit court. Burton v.
Stewart, 549 U.S.147, 157 (2007) (“Burton neither
sought nor received authorization from the Court of Appeals
before filing his 2002 petition, a ‘second or
successive' petition challenging his custody, and so the
District Court was without jurisdiction to entertain
Aybar fails to meet the requirements for an early release
under Section 3582(c)(1) based on his declining health. The
Director of the Bureau of Prisons must move to reduce
Aybar's sentence under Section 3582(c)(1)(A) for
entitlement to what is commonly called “compassionate
release.” See Cruz-Pagan v. Warden, FCC
Coleman-Low, 486 Fed.Appx. 77, 79 (11th Cir. 2012)
(“But under § 3582(c)(1)(A), a court cannot reduce
a prisoner's sentence except ‘upon [the] motion of
the Director of the [BOP]' and a finding that
‘extraordinary and compelling reasons warrant' a
reduction. The plain meaning of this section requires a
motion by the Director as a condition precedent to the
district court before it can reduce a term of imprisonment,
” which the opinion characterizes as
“compassionate release.”) (brackets original).
Aybar must pursue his claim for compassionate release within
the prison system's administrative procedures.
* * * *
an applicant cannot appeal a district court's denial of
relief under Section 2255 unless either the district court or
the circuit court issues a certificate of appealability
(“COA”). However, as Williams v.
Chatman, 510 F.3d 1290, 1295 (11th Cir. 2007), explains
(in the context of an application for the writ of habeas
corpus under Section 2254), a COA cannot issue in this action
because the district court cannot entertain the motion to
vacate to review the second or successive application:
Because he was attempting to relitigate previous claims that
challenge the validity of his conviction, Williams was
required to move this Court for an order authorizing the
district court to consider a successive habeas petition.
See 28 U.S.C. § 2244(b)(3)(A). Without such
authorization, the district court lacked subject matter
jurisdiction to consider the successive petition, and
therefore could not issue a COA with respect to any of these
See United States v. Robinson, 579 Fed.Appx. 739,
741 n.1 (11th Cir. 2014) (applying Williams in
determining that the district court lacked jurisdiction
because the motion to alter or amend a judgment under Rule
60(b), Federal Rules of Civil Procedure, was actually an
impermissible second or successive motion under Section 2255
and, as a consequence, “a COA was not required to
appeal the denial of the motion”).
the motion to vacate under 28 U.S.C. § 2255 (Doc. 1) is
DISMISSED. The clerk must close this case.
 Unless later superseded by Eleventh
Circuit precedent, a Fifth Circuit decision issued before
October 1, 1981, binds this court. Bonner v. City of
Prichard, 661 F.2d 1206, ...