USA v. Salter

1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ERSKINE D. SALTER, 	:
Petitioner, 	:
CIVIL ACTION 13-0494-WS-M
v. 	:
CRIMINAL ACTION 09-00024-WS-M
UNITED STATES OF AMERICA, 	:
Respondent. 	:
REPORT AND RECOMMENDATION
Pending before the Court is Petitioner’s Motion to Vacate,
Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 65)
and Respondent’s Motion to Dismiss (Doc. 69). 	This action was
referred to the undersigned Magistrate Judge for report and
recommendation pursuant to 28 U.S.C. § 636(b) and Rule 8(b) of
the Rules Governing Section 2255 Cases. 	It is now ready for
consideration. 	The record is adequate to dispose of this
matter; no evidentiary hearing is required.1 It is recommended
that Respondent’s Motion to Dismiss (Doc. 69) be granted, that
Petitioner’s Motion to Vacate (Doc. 65) be dismissed, and that
judgment be entered in favor of Respondent, the United States of
America, and against Petitioner Erskine D. Salter. 	It is
1Petitioner has also filed a Motion to Dismiss (Doc. 72) and a
Motion to Amend (Docs. 73-74). 	However, as will be set out within the
body of this Report and Recommendation, the Court is without
jurisdiction to take any action. 	Therefore, the Motions are DENIED.
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further recommended that any certificate of appealability filed
by Petitioner be denied as he is not entitled to appeal in forma
pauperis.
Petitioner previously filed a Petition to Alter, Amend or
Vacate the Sentence (Doc. 34). 	That Petition was denied, and
judgment was entered, by Judge Steele on September 29, 2011
(Docs. 54-55).
As noted in Respondent’s Motion to Dismiss (Doc. 69), “[a]
second or successive motion [to vacate] must be certified as
provided in section 2244 by a panel of the appropriate court of
appeals.” 	28 U.S.C. § 2255(h). 	The Petitioner must seek and
obtain this certification “[b]efore a second or successive
application . . . is filed in the district court.” 	28 U.S.C. §
2244(b)(3)(A) (emphasis added). 	“Failure to petition [the court
of appeals] for permission to file a successive § 2255 motion
leaves the district court without jurisdiction to rule on the
successive § 2255 motion and the motion should be dismissed.”
Lazo v. United States, 314 F.3d 571, 574 (11th Cir. 2002),
vacated on other grounds sub nom. Gonazlez v. Secretary, 326
F.3d 1175 (11th Cir. 2003), superseding opinion, 366 F.3d 1253
(11th Cir. 2004) (en banc); accord Section 2255 Rule 4(b) (when
the motion on its face reflects “that the moving party is not
entitled to relief, the judge must dismiss the motion”).
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Petitioner has not obtained the required leave to file this
successive petition and therefore this Court is without
jurisdiction to rule on it.
Salter has asserted that this Court should consider this
petition as it is based on a recent U.S. Supreme Court decision,
Alleyne v. United States, 133 S.Ct. 2151 (2013). 	However, as
previously stated, this Court is without jurisdiction to
consider this argument under statutory language previously set
out. 	This Court’s reading of Alleyne does not unlock the gate
through which Petitioner seeks to enter this Court; that key
must be obtained from the Eleventh Circuit Court of Appeals.
Accordingly, it is recommended that Respondent’s Motion to
Dismiss (Doc. 69) be granted, that Petitioner’s Motion to Vacate
(Doc. 65) be dismissed, and that judgment be entered in favor of
Respondent, the United States of America, and against Petitioner
Erskine D. Salter.
Furthermore, pursuant to Rule 11(a) of the Rules Governing
§ 2255 Cases, the undersigned recommends that a certificate of
appealability (hereinafter COA) in this case be denied. 	28
U.S.C. foll. § 2255, Rule 11(a) (“The district court must issue
or deny a certificate of appealability when it enters a final
order adverse to the applicant”). 	The habeas corpus statute
makes clear that an applicant is entitled to appeal a district
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court’s denial of his habeas corpus petition only where a
circuit justice or judge issues a COA. 	28 U.S.C. § 2253(c)(1).
A COA may issue only where “the applicant has made a substantial
showing of the denial of a constitutional right.” 	28 U.S.C. §
2253(c)(2). 	Where a habeas petition is being denied on
procedural grounds, “a COA should issue [only] when the prisoner
shows . . . that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling.” 	Slack v. McDaniel, 529 U.S. 473, 484
(2000). 	As Salter has not sought permission from the Eleventh
Circuit Court of Appeals to file this action, a reasonable
jurist could not conclude either that this Court is in error in
dismissing the instant petition or that Petitioner should be
allowed to proceed further. 	Slack, 529 U.S. at 484 (“Where a
plain procedural bar is present and the district court is
correct to invoke it to dispose of the case, a reasonable jurist
could not conclude either that the district court erred in
dismissing the petition or that the petitioner should be allowed
to proceed further”).
CONCLUSION
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It is recommended that Petitioner’s petition for writ of
habeas corpus, filed pursuant to 28 U.S.C. § 2255, be denied.
It is further recommended that any certificate of appealability
filed by Petitioner be denied as he is not entitled to appeal in
forma pauperis.
NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on
all parties in the manner provided by law. 	Any party who
objects to this recommendation or anything in it must, within
fourteen (14) days of the date of service of this document, file
specific written objections with the Clerk of this Court. 	See
28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(B); S.D. ALA. L.R.72.4.
In order to be specific, an objection must identify the specific
finding or recommendation to which objection is made, state the
basis for the objection, and specify the place in the Magistrate
Judge’s report and recommendation where the disputed
determination is found. 	An objection that merely incorporates
by reference or refers to the briefing before the Magistrate
Judge is not specific.
DONE this 27th day of December, 2013.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
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