Opinion
Case No. CV616-101 Case No. CR613-018
08-30-2016
TACARRO MORGAN, Movant, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
This Court denied Tacarro Morgan's first 28 U.S.C. § 2255 just months ago, and her appeal is still pending. CR613-018, doc. 30, 2016 WL 2758278 (S.D. Ga. May 12, 2016), adopted, doc. 36, 2016 WL 3087061 (S.D. Ga. June 2, 2016); doc. 38 (Notice of Appeal). Now she's back with a second § 2255 motion, this time to argue that a recent U.S. Sentencing Guidelines change should be applied to reduce her sentence. Doc. 43 at 4 ("minor role adjustment; newly amended 3B1.2 just been made retroactive is applicable to my case"); see also id. at 8 ¶ 13 (same); id at 10 ¶ 18 (same).
This claim sprouted some legs in United States v. Quintero-Leyva, 823 F.3d 519 (9th Cir. 2016), where the Ninth Circuit held that the amended commentary to USSG § 3B1.2 -- which provides for a reduced offense level for defendants who were minimal or minor participants in the criminal activity at issue -- applies retroactively on direct appeals. That court remanded the case because it "c[ould] not determine from the record whether or not the [district] court considered all the factors now listed in § 3B1.2." 823 F.3d at 523.
But as pointed out in Young v. United States, 2016 WL 4472937 (C.D. Ill. Aug. 24, 2016), QuinteroLeyva's reasoning does not apply in collateral attacks. Id. at * 2.
Indeed, the proper avenue for a defendant seeking a sentence reduction based on an amendment to the Sentencing Guidelines is to file a motion under 18 U.S.C. § 3582(c)(2) (allowing modification to term of imprisonment if defendant was sentenced "based on a sentencing range that has subsequently been lowered by the Sentencing Commission").
"Before a second or successive application permitted by this section 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). This Court "lacks jurisdiction to decide a second or successive petition filed without [the court of appeals'] authorization." Insignares v. Sec'y, Fla. Dep't of Corr., 755 F.3d 1273, 1278 (11th Cir. 2014). Consequently, it "must dismiss a second or successive petition, without awaiting any response from the government, unless the court of appeals has given approval for its filing." Smalls v. St. Lawrence, 2012 WL 1119766 at * 1 (S.D. Ga. Feb. 27, 2012) (quoting Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996) (emphasis in original)), adopted, 2012 WL 1119761 (S.D. Ga. Apr. 3, 2012).
Because this is Tacarro Morgan's second § 2255 motion and she never sought permission from the court of appeals to file it, "this Court is not at liberty to consider it." Id. Accordingly, it should be DISMISSED as successive. Applying the Certificate of Appealability (COA) 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.") (emphasis added).
SO REPORTED AND RECOMMENDED this 30th day of August, 2016.
/s/_________
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
Id. In any event, Morgan does not argue that her sentence fell outside the U.S. Sentencing Guidelines range, which means that it is nonreviewable here in any event. Sandidge v. United States, 2016 WL 4154929 at * 2 (S.D. Ill. Aug. 5, 2016) ("As long as a defendant's sentence is within the sentencing range provided by the statute of the offense, sentencing guideline calculation errors are nonconstitutional and are not reviewable in § 2255 proceedings.").