United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.
matter is before the court upon Defendant Jerry Keith
Shiver's “Motion Under 28 U.S.C. §2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody” and Memorandum of Law. (ECF Nos. 177, 178.)
Rule 4(b) of the Rules Governing Section 2255 Proceedings
provides in part that “[i]f it plainly appears from the
face of the motion and any attached exhibits and the record
of prior proceedings that the moving party is not entitled to
relief, the judge must dismiss the motion and direct the
clerk to notify the moving party.” Shiver has not
obtained leave from the Eleventh Circuit to file a second or
successive § 2255 motion, and this motion should be
denied because the district court does not have jurisdiction
to consider the merits of the Shiver's claims.
Jerry Keith Shiver pleaded guilty to five counts of a ten
count indictment. Specifically, his guilty plea encompassed
the following charges: (1) conspiracy to distribute more than
five grams of actual methamphetamine, oxycodone and methadone
(Count 1); (2) distribution of methamphetamine (Count 6); (3)
possession with intent to distribute methamphetamine,
oxycodone and methadone (Count 8); (4) possession of a
firearm in furtherance of a drug trafficking crime (Count 9);
and (5) felon in possession of a firearm (Count 10). (ECF No.
42). The court sentenced Shiver to a term of 60 months on
Counts 1, 6, 8, and 10, followed by the statutory mandatory
minimum term of 60 months consecutive on Count 9. (ECF No.
91). Judgment was entered on April 24, 2013. Shiver did not
appeal, but he has filed numerous post-conviction motions,
including motions pursuant to 28 U.S.C. § 2255.
20, 2016, Shiver filed a motion under 28 U.S.C. § 2255
seeking relief pursuant to Johnson v. United States,
135 S.Ct. 2551 (2015) and Molina-Martinez v. United
States, 136 S.Ct. 1338 (2016). (ECF No. 138.) The court
denied the motion. (ECF No. 142.) On August 30, 2016, the
court denied Shiver's § 2255 motion seeking
sentencing relief under Amendment 794 of the Sentencing
Guidelines. (ECF Nos. 146, 149.) On February 8, 2017, the
court denied Shiver's second motion for retroactive
application of Amendment 794 of the Sentencing Guidelines.
(ECF Nos. 159, 162.) In August of 2017, the court denied as
successive another § 2255 motion. (ECF Nos. 173-175.)
The instant motion is also successive.
a second or successive application for § 2255 relief is
filed in the district court, a defendant must move in the
appropriate court of appeals for an order authorizing the
district court to consider the application. See 28
U.S.C. § 2255(b)(3) and § 2255(h); Felker v.
Turpin, 518 U.S. 651 (1996); United States v.
Holt, 417 F.3d 1172, 1175 (11th Cirl 2005). Shiver is
required to obtain this authorization even though he relies
on new Supreme Court decisions that were not previously
available, United States v. Davis, 139 S.Ct. 2319
(2019) and United States v. Rehaif, 139 S.Ct. 2191
(2019). Because he has not obtained authorization from the
Eleventh Circuit Court of Appeals to file a successive
motion, his latest motion to vacate must be dismissed.
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), § 2255 Rules.
review of the record, 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
attention of the district judge in the objections permitted
to this report and recommendation.
on the foregoing, it is respectfully
1. The second or successive Motion under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence (ECF No. 177)
be denied for lack of jurisdiction.
2. A certificate of appealability be DENIED.