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Gordon v. United States

United States District Court, S.D. Georgia, Savannah Division

April 12, 2017

MAURICE ANTHONY GORDON, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

         Movant Maurice Anthony Gordon, proceeding pro se, moves under 28 U.S.C. § 2255 to vacate his sentence. Doc. 177;[1] see docs. 14 (indictment), 90 (jury verdict), 96 (judgment for 180 months' imprisonment). The Government seeks to dismiss his motion as successive (doc. 183); Gordon has not opposed.

         I. BACKGROUND

         This is not Gordon's first rodeo. After judgment was entered on March 28, 2000, he unsuccessfully appealed, see United States v. Gordon, 273 F.3d 1119 (Table) (11th Cir. 2001), and attempted (unsuccessfully) to challenge his sentence, see doc. 137, 140 & 143 (dismissed as untimely). In August 2015, the Department of Justice (DOJ) issued a letter informing counsel that a microscopic hair comparison analysis prepared during the investigation had included "erroneous . . . statements that exceeded the limits of science." Doc. 176 at 1 (ordering a copy served on Gordon). The DOJ had apparently reviewed Gordon's file as part of a systematic review of "microscopic hair comparison reports and testimony presented . . . before December 31, 1999, " and determined that his report had "overstat[ed] the conclusions that may appropriately be drawn from a positive association between evidentiary hair and a known hair sample." Id. at 4.

         II. ANALYSIS

         Gordon filed this latest motion on January 22, 2017 -- without authorization from the Eleventh Circuit to present a successive habeas motion -- contending that this "new" information warranted § 2255 relief. Doc. 177. To file a second or successive § 2255 motion, however, he 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; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

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. 2010).

         Since this Court dismissed Gordon's first § 2255 motion on the merits[2] and he has not sought authorization from the Eleventh Circuit to file a successive motion, there is no jurisdiction to consider his second petition. In re Bradford, 830 F.3d 1273, 1277 (11th Cir. 2016); United Case 4:17-cv-00020-WTM-GRS Document 7 Filed 04/12/17 Page 4 of 6 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").[3]

         It follows that movant cannot rely upon § 2255(h)(2) to permit his indisputably successive filing. His motion is therefore procedurally barred and must be DISMISSED. Accordingly, the Government's motion to dismiss Gordon's § 2255 motion (doc. 183) should be GRANTED. Also, 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 ...


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