United States District Court, S.D. Georgia, Dublin Division
MAGISTRATE JUDGE'S REPORT AND
K. EOTS UNITED STATES MAGISTRATE JUDGE
an inmate at the Federal Correctional Institution in Jesup,
Georgia, filed a motion under 28 U.S.C. § 2255 to
vacate, set aside, or correct his sentence. The matter is now
before the Court for an initial review of Petitioner's
motion as required by Rule 4 of the Rules Governing Section
2255 Proceedings for the United States District Courts. For
the reasons set forth below, the Court
REPORTS and RECOMMENDS the
§ 2255 motion be DISMISSED on the basis
that it is successive and has not been authorized by the
Eleventh Circuit Court of Appeals for consideration, and that
this civil action be CLOSED.
7, 2014, the grand jury in the Southern District of Georgia
charged Petitioner in a superseding indictment with one count
of possession with intent to distribute cocaine, one count of
conspiracy to possess with intent to distribute and to
distribute controlled substances, and six counts of use of a
communication facility in committing, causing, and
facilitating the conspiracy to possess with intent to
distribute, and to distribute controlled substances.
United States v. Goins, CR 314-002, doc. no. 39
(S.D. Ga. May 7, 2014) (hereinafter “CR
314-002”). Represented by retained counsel J. Stanley
Smith, Jr., and James C. Garner, Petitioner pled guilty to
the one count of conspiracy to possess with intent to
distribute and to distribute controlled substances on
September 25, 2014, pursuant to a negotiated plea agreement
containing a broad appeal and collateral attack waiver
provision. Id., doc. nos. 234-36. In relevant part,
the plea agreement stated Petitioner waived his right to
appeal the conviction and sentence and the right to
collaterally attack the conviction and sentence in any
post-conviction proceeding, including a § 2255
proceeding, unless his sentence exceeded certain narrow
parameters. Id., doc. no. 236, p. 5.
21, 2015, United States District Judge Dudley H. Bowen, Jr.,
sentenced Petitioner to 151 months imprisonment, and the
judgment was entered on the docket May 26, 2015.
Id., doc. nos. 342, 345. Petitioner did not
immediately file a direct appeal but did file a motion to
reduce sentence on January 11, 2016, which Judge Bowen
denied. See id., doc. nos. 378, 380. On April 19,
2016, Petitioner filed a motion for copies of his case file,
which Judge Bowen denied on May 5, 2016. See id.,
doc. nos. 384, 385. On May 9, 2016, Petitioner filed another
motion asking the Court to provide him with case documents he
said he required to file his § 2255 motion.
Id., doc. no. 386. Petitioner additionally requested
the Court to extend his time to file a § 2255 motion.
Id. Judge Bowen denied as moot Petitioner's
second motion for documents and noted the Court lacked the
authority to grant Petitioner an extension to file his §
2255 motion. Id., doc. no. 388.
Clerk of Court received and filed Petitioner's first
§ 2255 motion on August 23, 2016, which alleged
ineffective assistance of counsel, as well as abuse of
discretion by Judge Bowen in “assuming” a
quantity of drugs for sentencing and failing to award him
several offense level reductions under U.S.S.G. § 3E1.1.
Id., doc. no. 399; CV 316-069, Goins v. United
States, doc. no. 1 (S.D. Ga. Aug. 23, 2016). In August
2016, Petitioner also filed an appeal of the January 2016
denial of his motion to reduce sentence, as well as an appeal
of his May 2015 judgment. CR 314-002, doc. nos. 345, 378,
380, 400, 402. On September 26, 2016, the Eleventh Circuit
dismissed both appeals for failure to pay filing and
docketing fees or move to proceed in forma pauperis.
Id., doc. no. 406. On January 18, 2017, Judge Bowen
denied the § 2255 motion as untimely. Id., doc.
no. 408, 418. The Eleventh Circuit dismissed Petitioner's
appeal. Id., doc. no. 445.
the recommendation for dismissal of the § 2255 motion
was under consideration by Judge Bowen, Petitioner filed a
habeas corpus petition under 28 U.S.C. § 2241 in a
different Division of this Court. See Goins v.
Flournoy, CV 216-069 (S.D. Ga. Dec. 22, 2016). In that
case, Petitioner alleged his sentence was illegally enhanced,
he received ineffective assistance of counsel which
invalidates his guilty plea, denial of due process, a
fundamental miscarriage of justice, actual innocence of the
crime to which he pled guilty, and lack of jurisdiction by
the Court over the underlying criminal prosecution.
Id., doc. nos. 1, 11. United States District Judge
Lisa Godbey Wood granted the government's motion to
dismiss that petition. Id., doc. no. 12. Petitioner
did not appeal.
filed two more motions to reduce his sentence in December
2016. Id., doc. nos. 414, 415. Judge Bowen denied
both motions. Id., doc. no. 417. Petitioner filed a
motion for reconsideration of Judge Bowen's order denying
those motions to reduce sentence, as well as a motion to
reconsider the denial of his first § 2255 motion as
untimely, both of which were also denied. Id., doc.
nos. 420-22, 428. Petitioner appealed the denial of the
motions for reconsideration and filed another motion to
reduce his sentence. Id., doc. nos. 431, 436.
Petitioner's multiple appeals were dismissed as
duplicative or for failure to prosecute. Id., doc.
nos. 443, 447, 456-57. Petitioner then filed a motion to
“correct” his PSI, for
“clarification” of the calculation of his
sentence, and to obtain documents from his underlying
criminal case, all of which Judge Bowen denied. Id.,
doc. nos. 465, 467, 470-72.
October 3, 2018 Order, Judge Bowen explained:
. . . Defendant appears to be sowing the seeds of an attack
against the legality of his sentence, which must be done
through a motion under 28 U.S.C. § 2255. The problem for
Defendant is twofold. First, his plea agreement contains a
broad appeal and collateral attack waiver. Second, he has
already filed a § 2255 motion, which was dismissed as
untimely on January 18, 2017. (Doc. No. 418.) Thus, in order
for Defendant to bring another § 2255 motion, he would
have to move the Eleventh Circuit Court of Appeals for an
order authorizing this Court to consider a second or
successive § 2255 motion. See 28 U.S.C.
§§ 2255, 2244(b)(3).
Id., doc. no. 472.
Petitioner signed the current § 2255 motion on April 11,
2019, and the Clerk of Court received and filed it on April
15, 2019. (Doc. no. 1.) Petitioner asserts the wiretaps used
during the investigation of the crimes for which he was
indicted in 2014 are now invalid under Dahda v. United
States, - U.S. -, 138 S.Ct. 1491 (U.S. 2018).
(Id. at 14-17.) He also claims his retained counsel
failed to file a notice of appeal as instructed.
(Id. at 7.) Petitioner does not acknowledge the
collateral attack waiver in his plea agreement with respect
to his wiretap arguments and contends his numerically second
§ 2255 motion is not “successive” within the
meaning of the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”) because the United States
Supreme Court did not decide Dahda until May of
2018. Petitioner further argues his lost appeal claim is not
barred by the collateral attack waiver in his plea agreement,
as Garza v. Idaho, 139 S.Ct. 738, 746-47 (U.S.
2019), ruled prejudice is presumed, regardless of a signed
appeal waiver, if counsel fails to file a notice of direct
appeal as instructed. He does not report seeking permission
from the Eleventh Circuit Court of Appeals to file his
numerically second § 2255 motion as to any of his
§ 2255 motion presently cannot be considered because of
the successive motion restrictions enacted by AEDPA and now
contained in 28 U.S.C. §§ 2255 ...