United States District Court, N.D. Georgia, Gainesville Division
RICHARD W.TSTORY UNITED STATES DISTRICT JUDGE
before the Court is the Magistrate Judge's Report and
Recommendation (R&R) recommending that the instant 28
U.S.C. § 2255 motion to vacate be denied as successive.
[Doc. 478]. Movant has filed his objections in response to
the R&R. [Docs. 482].
district judge has broad discretion to accept, reject, or
modify a magistrate judge's proposed findings and
recommendations. United States v. Raddatz. 447 U.S.
667, 680 (1980). Pursuant to 28 U.S.C. § 636(b)(1), the
Court reviews any portion of the Report and Recommendation
that is the subject of a proper objection on a de
novo basis and any non-objected portion under a
"clearly erroneous" standard. "Parties filing
objections to a magistrate's report and recommendation
must specifically identify those findings objected to.
Frivolous, conclusive or general objections need not be
considered by the district court." Marsden v.
Moore. 847 F.2d 1536, 1548 (11thCir. 1988).
procedural history relevant to the § 2255 motion is
fairly lengthy. In 2003, a jury sitting in this Court
convicted Movant of conspiracy to possess with intent to
distribute marijuana. At sentencing, this Court determined
that the base offense level was 36, based on at least 10, 000
but less than 30, 000 kilograms of marijuana and imposed
several enhancements under the Guidelines, resulting in an
adjusted offense level of 44, which, in combination with
Movant's criminal history category of I, resulted in a
guideline range of life imprisonment. This Court imposed a
Eleventh Circuit affirmed Movant's conviction and
sentence. [Doc. 350]. The Supreme Court later granted
certiorari and vacated the decision in light of Booker v.
United States, 543 U.S. 220 (2005). Cesal v. United
States. 545 U.S. 1101 (2005). On remand, the Eleventh
Circuit reinstated its previous opinion and affirmed
Movant's conviction and sentence. [Doc. 350].
November 3, 2006, Movant filed a § 2255 motion, [Doc.
374], which this Court denied on June 18, 2008. [Doc. 396].
Both this Court and the Eleventh Circuit declined to issue a
certificate of appealability, and the Eleventh Circuit later
denied Movant's application to file a second or
successive § 2255 motion. [Doc. 424].
ten years later, in August 2016, the Federal Defender
Program, Inc., and the Government filed a joint motion
informing this Court that Movant was eligible for a sentence
reduction under § 3582(c)(2) and Amendment 782 to the
guidelines. The parties explained that Amendment 782 lowered
Movant's base offense level by two levels from 36 to 34,
resulting in an amended guideline range of 360 months to life
imprisonment. The parties recommended that Movant receive a
360-month sentence. This Court granted the motion and reduced
Movant's sentence to 360 months. [Doc. 428].
then sent a letter informing this Court that he did not
authorize the joint motion for a reduction of his sentence
that was filed on his behalf and that he had been
representing himself pro se since 2005. This Court then
issued an order, [Doc. 429], in which it memorialized a
conversation it had with the Federal Defender and the
Government, in which the Federal Defender represented that
she believed, in error, that she had received Movant's
consent to file the motion for reduction of sentence. This
Court indicated that it would not take any further action
without Movant's consent and noted that Movant had not
asked the court to set aside the order reducing his sentence.
Instead of responding to this Court, Movant filed an appeal,
arguing that the Government, in an effort to undermine his
petition for executive clemency, engaged in prosecutorial
misconduct by recruiting the Federal Defender to file a
motion for reduction of sentence under § 3582(c)(2)
without Movant's approval. He also argued that this Court
lacked authority to reduce his sentence because he did not
authorize the Federal Defender or the Government to file a
§ 3582(c)(2) motion on his behalf.
Eleventh Circuit issued an opinion, [Doc. 466], in which it
(1) determined that Movant was clearly entitled to the
sentence reduction, (2) was not persuaded that the Government
engaged in misconduct, (3) determined that nothing prevented
Movant from opposing the sentence reduction, and (4) vacated
this Court's order reducing Movant's sentence. This
Court duly made the Eleventh Circuit's mandate the order
of this Court, [Doc. 467], which means that Movant is now
serving the life sentence imposed in the Judgment and
Commitment entered on October 3, 2003.
next filed the now-pending § 2255 motion. In the
R&R, the Magistrate Judge points out that Movant has
already sought relief under § 2255 to challenge his 2003
judgment. Because Movant remains subject to that judgment,
his motion is successive, and pursuant to § 2255(h),
this Court may not consider his motion unless he first
obtains permission from the Eleventh Circuit Court of
Appeals. Accordingly, the motion must be denied.
objections, Movant contends that this Court's order
vacating his reduced sentence is a new final judgment and
that his motion is thus not successive. However, Movant has
failed to cite case law that supports his contention. In its
own search, this Court could not find case law directly on
point, but Johnson v. Sec'y. Dept. of
Corrections, 717 Fed.Appx. 896 (11th Cir. 2017),
strongly suggests that Movant's argument is incorrect. In
Johnson, the Eleventh Circuit concluded that a 28
U.S.C. § 2254 petition was successive even though the
state court had altered his sentence after Johnson had filed
his first petition. The original judgment had not changed,
and "the only judgment authorizing Petitioner's
confinement is the original judgment entered in 1983."
Id. at 898. Having considered the matter, this Court
concludes that Movant remains subject to the original 2003
judgment, and as a result his § 2255 motion is
so concluded, however, this Court informs Movant that, while
there is no guarantee, there is a possibility that the
Government might not oppose this Court again reducing his
sentence to 360 months. This Court understands that Movant
might not be inclined to seek a reduction as that might foil
his opportunity to obtain clemency, but his chances for
obtaining clemency are uncertain, at best. As a result, this
Court is willing to entertain a motion for a reduction of
reasons stated above, the R&R, [Doc. 478] is hereby
ADOPTED as the order of this Court, and the
§ 2255 motion, [Doc. 477], is DENIED as
successive. The Clerk is DIRECTED to close
civil action number 2:19-CV-0134-RWS.