United States District Court, S.D. Georgia, Savannah Division
JOHN E. CORN, JR., Movant,
UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
convicted for possession of a firearm as a felon 1991, doc.
(plea agreement), John Corn, Jr., was sentenced to a total
270 months' imprisonment. See doc. 36 (judgment
imposing 210 months' imprisonment on count one and 60
months' imprisonment on count two, to run consecutively,
and 120 months' imprisonment on count three, to run
concurrently to count one); doc. 44 (Sentencing Hearing
transcript). His conviction was affirmed on appeal. Doc. 48.
He filed his first motion to vacate his sentence in June of
1996 (doc. 49), and it was duly dismissed as untimely filed.
Doc. 54 (Report and Recommendation (R&R)); doc. 56 (Order
adopting R&R); see also doc. 69 (Order of the
Court of Appeals denying Corn's motions to proceed in
forma pauperis and for a writ of mandamus determining
his § 2255 motion to be frivolous).
now moves under 28 U.S.C. § 2255 to correct his sentence to
have his Career Offender designation reconsidered. He does
not, however, offer even the slightest hint that he has
sought the Eleventh Circuit's permission to do so.
See doc. 93. Preliminary § 2255 Rule 4 review
shows that his motion should be DENIED.
a second or successive § 2255 motion, Corn first had to
file an application with the Eleventh Circuit for an order
authorizing the district court to consider the motion. 28
U.S.C. § 2244(b)(3)(A); Farris v. United
States, 333 F.3d 1211, 1216 (11th Cir. 2003). A panel of
the court of appeals must certify that the second or
successive motion contains:
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
28 U.S.C. § 2255(h); In re Anderson, 396 F.3d
1336, 1337 (11th Cir. 2005). “Without
authorization” from the court of appeals, a
“district court lack[s] jurisdiction to consider [a
movant's] second or successive” motion. Carter
v. United States, 405 F. App'x 409, 410 (11th Cir.
this Court dismissed Corn's first § 2255 motion on
the merits and he has not sought authorization from
the Eleventh Circuit to file a successive motion, there is no
jurisdiction to consider this second petition. In re
Bradford, 830 F.3d 1273, 1277 (11th Cir. 2016);
United States v. Holt, 417 F.3d 1172, 1175 (11th
Cir. 2005); see also Medberry v. Crosby, 351 F.3d
1049, 1061 (11th Cir. 2003) (“when a federal
prisoner's claims fall within the ambit of § 2255,
the prisoner is subject to that section's
restrictions”). It follows that Corn cannot rely upon
§ 2255(h)(2) to permit his indisputably successive
filing. His motion is therefore procedurally barred and must
the Certificate of Appealability (COA) standards set forth in
Brown v. United States, 2009 WL 307872 at * 1-2
(S.D. Ga. Feb. 9, 2009), the Court discerns no COA-worthy
issues at this stage of the litigation, so no COA should
issue either. 28 U.S.C. § 2253(c)(1); Rule 11(a) of the
Rules Governing Habeas Corpus Cases Under 28 U.S.C. §
2254 (“The district court must issue or deny a
certificate of appealability when it enters a final order
adverse to the applicant”) (emphasis added).
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 recommendations 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).
REPORTED AND RECOMMENDED.
 The Court is citing to the criminal
docket in CR491-151 unless otherwise noted, and all page
numbers are those imprinted by the Court's ...