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Martin v. United States

United States District Court, S.D. Georgia, Savannah Division

June 20, 2014

MARK ELLIOTT MARTIN, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

REPORT AND RECOMMENDATION

G.R. SMITH, Magistrate Judge.

Serving a 360-month sentence, doc. 381 at 2, Mark Elliott Martin has filed his fourth 28 U.S.C. § 2255 motion attacking the same drugs-based sentence that he previously challenged under § 2255. CR498-106, doc. 883; see also 842, denied as successive, doc. 843 at 2; doc, 661 (characterizing doc. 559 as a second § 2255 motion); doc. 565 (first § 2255 motion raising ineffective assistance and Apprendi challenges against his sentence), denied doc. 584. Since this is a successive § 2255 motion, Martin must first "move in the appropriate court of appeals for an order authorizing the district court to consider the application."[1] 28 U.S.C. § 2244(b)(3)(A); see 28 U.S.C. § 2255(h) (cross-referencing § 2244 certification requirement).

In fact, district courts must dismiss second or successive petitions, without awaiting any response from the government, absent prior approval by the court of appeals. Levert v. United States, 280 F.Appx. 9361, 936 (11th Cir. 2008) ("Without authorization, the district court lacks jurisdiction to consider a second or successive petition."); Hill v. Hopper, 112 F.3d 1088, 1089 (11th Cir. 1997) (same); Mattox v. United States, 460 F.Appx. 828, 829 (11th Cir. 2012) ("When a prisoner has previously filed a § 2255 motion... he must apply for and receive permission from us before filing a successive § 2255 motion") (quotes and cite omitted).

Because Martin has filed this latest § 2255 motion without prior Eleventh Circuit approval, this Court is without jurisdiction to consider it. Consequently, it should be DISMISSED as successive. Applying the Certificate of Appealability ("COX) standards, the Court discerns no COA-worthy issues at this stage of the litigation, so no COA should issue. 28 U.S.C. § 2253(c)(1). And, as there are no non-frivolous issues to raise on appeal, an appeal would ...


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