United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
Maurice Anthony Gordon, proceeding pro se, moves
under 28 U.S.C. § 2255 to vacate his sentence. Doc.
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.
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.
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;
(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 Gordon'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 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
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.
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 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