United States District Court, S.D. Georgia, Statesboro Division
REPORT AND RECOMMENDATION
convicted for conspiracy to possess with intent to distribute
cocaine, Juanice Gaines, proceeding pro se, moves
under 28 U.S.C. § 2255 to vacate career offender
enhancement applied to his 2009 sentence. Doc.
see docs. 5 (indictment), 275 (plea agreement), 272
(judgment for 156 months' imprisonment). After the Court
orally pronounced his sentence, Gaines moved to withdraw his
guilty plea. See doc. 367 (denying Gaines'
motion for leave to appeal in forma pauperis because
his appeal "[wa]s untimely, frivolous, and represents
'sour grapes over a sentence once pronounced.'")
(quoting United States v. Vorin, 535 U.S. 55, 57
(2002)). That appeal was dismissed as frivolous. Doc. 389
(mandate of the Eleventh Circuit). Since then, he has
repeatedly sought to unwind his sentence, to similar result.
See, e.g., docs. 392, 438, 467, 515, 523, 534, 561,
578. This is not his first § 2255 rodeo.
first motion to vacate his sentence was dismissed as
untimely. Docs. 392 & 397; see also Gaines v. United
States, No. 11-15404-A (11th Cir. Apr. 30, 2012)
(denying certificate of appealability). His second attempt to
neutralize his enhanced sentence was summarily rejected.
See In re Gaines, No. 16-14732 (11th Cir. Jul. 26,
2016) (Gaines' sentence is undisturbed, because he was
not enhanced pursuant to the Armed Career Criminal Act (ACCA)
- he was sentenced as a career offender under the Sentencing
Guidelines, and Johnson v. United States, 576 U.S.,
135 S.Ct. 2551 (2015) (holding the ACCA "residual
clause" unconstitutionally vague) has no effect on the
Guidelines); see also Beckles v. United States, __
U.S. __, 2017 WL 855781 (Mar. 6, 2017) (holding that
Johnson does not extend to the identical language of
the Sentencing Guidelines' residual clause); United
States v. Matchett, 802 F.3d 1185 (11th Cir. 2015)
(same). As was his third attempt. See In re: Gaines,
No. 16-15547-C (11th Cir. Sept. 21, 2016) (denying
Gaines' request to file a successive § 2255 motion).
now seeks to file a successive § 2255 motion, without
first asking permission from the Eleventh Circuit to do so
(presumably since his prior attempts have been rejected).
Doc. 578; see (28 U.S.C. § 2244(b)(3)(A)
("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
that authorization, this Court lacks jurisdiction to hear any
argument already addressed "on the merits." See
Slack v. McDaniel, 529 U.S. 473, 485-86 (2000); see
also In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011)
(collecting cases) (dismissal as time-barred is "on the
merits, " making any later motion challenging the same
conviction successive and, therefore, requiring authorization
by the Circuit panel prior to filing in the district court);
Stewart v. United States, 646 F.3d 856, 861 (11th
Cir. 2011) (describing a limited class of cases where the
successiveness bar would not apply, none of which
are applicable here). All of Gaines' claims are
impermissibly successive (meaning the Court cannot hear
resurrects several of his already-rejected arguments under
the guise of an ineffective assistance of counsel (IAC)
claim. Id. at 4-7. His second claim (that the
Government breached its plea-agreement promises by enhancing
his sentence under 21 U.S.C. § 85l), third claim
(disputing the career offender enhancement is both (a)
unconstitutional after Johnson and Mathis
and (b) invalid because it was not mentioned in his plea
agreement), and fourth claim (arguing that his prior drug
convictions are no longer enhancement predicates following
Mathis and "Hinkle") are all
impermissibly successive. See In re Gaines, No.
16-14732 (11th Cir. 2016) (denying authorization to file a
successive § 2255 motion because Johnson
changes nothing about his Sentencing Guidelines-enhanced
has already had (at least) one § 2255 dismissed on the
merits. Doc. 397, 402, 409 & 433; see In re
Rains, 659 F.3d at 1275 (dismissal as time-barred is
"on the merits"). He cites no "newly
discovered evidence" or "new rule of constitutional
law" that would appear to invoke this Court's
ability to reevaluate these claims. See 28 U.S.C.
§ 2255(h). Gaines must therefore go to the Eleventh
Circuit for permission if he wants those claims aired, and
this Court can do nothing with them absent that
permission. should be DISMISSED.
the Government's motion to dismiss Gaines' successive
§ 2255 motion should be GRANTED. Doc.
584. For the reasons set forth above, it is plain that he
raises no substantial claim of deprivation of a
constitutional right. Accordingly, no certificate of
appealability should issue. 28 U.S.C. § 2253; Fed. R.
App. P. 22(b); Rule 11(a) of the Rules Governing Habeas
Corpus Cases Under 28 U.S.C. § 2255 ("The district
court must issue or deny a certificate of appealability when
it enters a final order adverse to the applicant."). Any
motion for leave to appeal in forma pauperis
therefore is moot.
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
"Objections to Magistrate Judge's Report and
Recommendations." Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendation pursuant to 28 U.S.C.
§ 636(b)(1)(C). The parties are advised that failure to
timely file objections will result in the waiver of rights on
appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing
Corp., 648 F.App'x 787, 790 (11th Cir. 2016);
Mitchell v. U.S., 612 F.App'x 542, 545 (11th