United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
Hezekaih Murdock pled guilty to conspiracy to possess with
intent to distribute, and distribute, controlled substances
(100 kilograms or more of marihuana) on April 18, 2012. Doc.
632(Judgment). He now moves to vacate his
conviction and sentence, contending that his counsel was
ineffective for “fail[ing] to object to a presentence
report, [and to] secure an agreed upon sentence or sentencing
range, prior to or at the time of the guilty plea being
tendered.” Doc. 890 at 9. Because his motion is
successive and he has not secured the necessary permission
from the Court of Appeals, the Court lacks jurisdiction to
October 2012 Murdock moved to vacate his sentence, alleging
ineffective assistance of counsel for failing to file a
requested notice of appeal and arguing that “the
Government [b]reached its Plea Agreement . . . .” Docs.
677 (28 U.S.C. § 2255 Motion) & 678 at 2
(identifying “issues presented”). His motion was
denied on the merits, doc. 722 (Judgment), but remanded by
the Court of Appeals in January 2015. Doc. 801 (Court of
Appeals opinion noting the Government had withdrawn its
reliance on Murdock's plea agreement-based collateral
attack waiver in his plea agreement). In April 2015, this
Court held an evidentiary hearing on his motion. Doc. 808
(Minute Entry). Before the Court rendered its decision,
however, he withdrew it. See doc. 821 (dismissing
case because petitioner, “through counsel, represents
that he received a sentence reduction . . . and is ‘now
satisfied with his sentence and no longer wishes to pursue
his pending section 2255 petition.'” (cite
omitted)); doc. 816 (granting Murdock's
sentence-reduction motion under 18 U.S.C. § 3582(c)(2)).
his appeal of the denial of his original motion was pending,
in March 2014 Murdock filed a second § 2255 motion.
See doc. 763. There, he alleged that law enforcement
“[p]re-plea misconduct rendered his plea involuntary,
” and “the prosecutor had intimate knowledge of
the law enforcement misconduct . . . and intentionally misled
Murdock as well as the court as to its existence.”
Id. at 4-5. The Court dismissed that motion and the
Court of Appeals denied his request for a Certificate of
Appealability (COA). Doc. 765 (recommending motion be denied
because “even if [the misconduct allegation] asserted
in his § 2255 motion escapes the time and successiveness
procedural bars, nevertheless it must be denied”
because of waiver of collateral attack in plea agreement);
doc. 768 (Judgment); doc. 774 (Court of Appeals Order, dated
July 2014, denying COA).
a second or successive [§ 2255 motion] . . . is filed in
the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application.” 28 U.S.C.
§ 2244(b)(3)(A); 28 U.S.C. § 2255(h) (“A
second or successive motion must be certified as provided in
§ 2244 . . . .”). “Without authorization,
the district court lacks jurisdiction to consider a second or
successive petition.” Farris v. United States,
333 F.3d 1211, 1216 (11th Cir. 2003) (citing Hill v.
Hopper, 112 F.3d 1088, 1089 (11th Cir. 1997)).
“[S]econd or successive status only attaches to a
judgment on the merits.” Boyd v. United
States, 754 F.3d 1298, 1302 (11th Cir. 2014) (explaining
that a dismissal without prejudice for being an unauthorized,
successive motion is not judgment on the merits for the
purpose of determining that a later petition is successive).
“the essential facts underlying [a] claim were
available at the time of [a] first § 2255 motion, and
[the movant] failed to raise [it], ” subsequent motions
are successive. Feas v. United States, 701 Fed.Appx.
768, 771 (11th Cir. 2017). The facts underlying Murdock's
present claim were clearly available to him when he filed (at
least one, if not both, of) his previous § 2255 motions.
After all, he contends that the ineffective assistance was
rendered at the pleading and sentencing stages; it is
inconceivable that he could have discovered his
counsel's failure to “obtain an agreed upon
sentence, ” or “object to the presentence
report” years after the fact. Doc. 890 at 1.
instant motion is, therefore, successive, and Murdock has
indisputably not sought permission from the Court of Appeals
to bring it before this Court. Since Murdock's motion is
successive, and was not authorized by the Court of Appeals,
it should be DISMISSED. Applying the
Certificate of Appealability standards set forth in Brown
v. United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb.
9, 2009), the Court discerns no COA-worthy issues at this
stage of the litigation, so no COA should issue. 28 U.S.C.
§ 2253(c)(1); 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.”).
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 recommendations 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 Fed.Appx. 787, 790 (11th Cir.
2016); Mitchell v. United States, 612 Fed.Appx. 542,
545 (11th Cir. 2015).
REPORTED AND RECOMMENDED.
 The Court is citing to the criminal
docket in CR410-159 unless otherwise noted and all page
numbers are those imprinted by the Court's docketing
 The Court notes that the transcript of
Murdock's change of plea hearing reflects that the
presiding Judge explained to Murdock that his attorney could
not state with certainty what his sentence would be, but only
“make an estimate of what those guidelines are going to
reflect, ” and warned Murdock that his sentence
“might be more harsh than [counsel] predicted . . .
.” Doc. 686 at 18-19. Murdock affirmed that he
understood. Id. The transcript of the sentencing
hearing also reflects that the Court asked Murdock whether he
“read what the probation officer has placed in the
report, ” and whether he had any “disagreement
with it.” Doc. 683 at 7. Murdock responded that he had
read the report, discussed it with his attorney, and did not
disagree with its contents. Id.
 This is so regardless of whether
Murdock's withdrawn motion resulted in his subsequent
motions being successive. The objective circumstances
surrounding voluntary withdrawal of a motion control whether
it “counts” for purposes of determining whether
subsequent motions are successive. See De Jesus Huarte v.
United States, 2016 WL 723488 at * 2 (S.D Fla. Dec. 14,
2016) (citing Vitrano v. United States, 643 F.3d
229, 233 (7th Cir. 2011) (“A § 2255 motion need
not be adjudicated on the merits to ‘count' as a
prisoner's first motion for AEDPA purposes. A prisoner
who voluntarily dismisses a § 2255 motion . . . may find
himself out of luck when he tries to file a second.”);
Thai v. United States, 391 F.3d 491, 495 (2nd Cir.
2004)); United States v. Whetstone, 2016 WL 6944165
at * 2 (N.D.Ga. Nov. 28, 2016) (“Courts generally
consider the circumstances surrounding a prisoner's