Gaines v. United States

          REPORT AND RECOMMENDATION

         Guilty-plea 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. 578;^[1] 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.

         I. BACKGROUND

         Gaines' 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).

         II. ANALYSIS

         Gaines 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 application.").

         Absent 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 them).

         Gaines 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^[2]), 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"^[3]) 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 sentence).

         Movant 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"^[4] 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.^[5] should be DISMISSED.

         III. CONCLUSION

         Accordingly, 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.

         This 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.

         After 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 Cir. 2015).

         SO REPORTED ...