Opinion
Case No. CV416-143 Case No. CR405-012
06-13-2016
DONALD L. UBELE, Movant, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
This Court has repeatedly denied Donald Ubele's 28 U.S.C. § 2255 and other post-conviction motions. See, e.g., CR405-012, doc. 101, adopted, doc., 121; doc. 139 (second § 2255 motion), doc. 144 (advising dismissal as successive), adopted, doc. 148, docs. 160 & 161 (appeals dismissed); see also doc. 153 (Order denying his Fed. R. Civ. P. 60(b) motion). Now he's back with a third § 2255 motion, doc. 170, this time to exploit the new rule announced in Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015), made retroactive by Welch v. United States, ___ U.S. ___, 136 S. Ct. 1257 (2016), and triggering a wave of successive § 2255 filings. See, e.g., In re Fleur, ___ F.3d ___, 2016 WL 3190539 (11th Cir. June 8, 2016), In re Hines, ___ F.3d ___, 2016 WL 3189822 (11th Cir. June 8, 2016), and In re Ricardo Pinder, Jr., ___ F.3d ___, 2016 WL 3081954 at * 1 (11th Cir. June 1, 2016).
Some of those successive-writ movants have succeeded in knocking on the appellate court's door. See, e.g., In re Hubbard, ___ F.3d ___, 2016 WL 3181417 at *7 (June 8, 2016) ("Because application of Johnson to § 16(b) as incorporated into the Sentencing Guidelines might render the career-offender residual clause that was applicable at the time Hubbard was sentenced unconstitutional, and because the rule in Johnson is substantive with respect to its application to the Sentencing Guidelines and therefore applies retroactively, this Court grants Hubbard's request for authorization to file a successive § 2255 motion.").
Ubele, too, must knock on the Eleventh Circuit's door. See, e.g., In re Robinson, ___ F.3d ___, 2016 WL 1583616 (11th Cir. Apr. 19, 2016). But given the time constraints illuminated by the concurrence in that case, id. at * 2 ("As best I can tell, all the prisoners we turned away may only have until June 26, 2016, to refile applications based on Johnson."), the Clerk should be DIRECTED to simply transfer his § 2255 motion directly to that court.
Finally, the Government's motion for probation records (doc. 162, filed in 2013) is DENIED as moot. Likewise DENIED as moot is Ubele's in forma pauperis motion. Doc. 171. No such filing fee is collected in a § 2255 case.
As another court recounts:
The Eleventh Circuit Court of Appeals has definitively stated that the PLRA has no application to a habeas petition. See, e .g., Skinner v. Wiley, 355 F.3d 1293 (11th Cir. 2004), citing Anderson v. Singletary, 111 F.3d 801, 803-05 (11th Cir.1997) (holding that the PLRA's filing fee provisions do not apply in §§ 2254 and 2255 petitions); Carmona v. United States Bureau of Prisons, 243 F.3d 629, 634 (2d Cir.2001) (stating that the PLRA does not apply to § 2241 petitions); Walker v. O'Brien, 216 F.3d 626, 633-34, 636-37 (7th Cir. 2000) (holding that the PLRA does not apply to § 2241 and § 2254 petitions); Blair-Bey v. Quick, 151 F .3d 1036, 1040-42 (D.C.Cir.1998) (holding that the PLRA filing fee provisions do not apply to habeas petitions); Davis v. Fechtel, 150 F.3d 486, 490 (5th Cir. 1998) (holding that the PLRA does not apply to § 2241 petitions); Mcintosh v. United States Parole Comm'n, 115 F.3d 809, 812 (10th Cir. 1997) (same).
SO REPORTED AND RECOMMENDED, this 13th day of June, 2016.
/s/_________
UNTIED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
Chasteen v. Mitchem, 2012 WL 3854573 at * 1 n. 3 (N.D. Ala. July 11, 2012); see also United States v. Cole, 101 F.3d 1076, 1077 (5th Cir. 1996). The Sixth Circuit instructs that, upon the appeal of a 28 U.S.C. § 2254 or § 2255 denial, fees must be collected under Fed. R. App. P. 24. Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997) ("Because we conclude that the filing fee requirements of the Prison Litigation Reform Act are inapplicable to § 2254 and § 2255, a prisoner who is unable to pay the required filing fees may seek leave to file an appeal in a § 2254 or § 2255 action pursuant to Rule 24(a) of the Federal Rules of Appellate Procedure.").