Opinion
Case No. 09-cr-20254
07-05-2017
UNITED STATES OF AMERICA, Plaintiff/ Respondent, v. DAMON DESEAN MORGAN, Defendant/ Petitioner.
ORDER ADOPTING THE REPORT AND RECOMMENDATION , GRANTING RESPONDENT'S MOTION TO DISMISS, DENYING PETITIONER'S MOTION TO VACATE SENTENCE, DENYING CERTIFICATE OF APPEALABILTIY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
On August 21, 2009 an indictment was issued charging Petitioner Damon Desean Morgan with three charges: (1) possession with intent to distribute fifty grams or more of cocaine base in the form of crack cocaine in violation of 21 U.S.C. § 841; (2) possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A); and (3) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). See ECF No. 3. Morgan ultimately pled guilty to the first charge. See ECF No. 17. On March 10, 2010 he was sentenced as a career offender to 210 months' imprisonment, and judgment was entered on March 16, 2010. See ECF No. 22. Morgan did not file any direct appeal.
Over six years later, on January 3, 2017, Petitioner Morgan filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, arguing that his sentence was rendered unconstitutional by the Supreme Court's decision Johnson v. United States, 135 S. Ct. 2551, 2562, 192 L. Ed. 2d 569 (2015) (striking down the residual clause of the Armed Career Criminal Act as unconstitutionally vague in violation of the due process clause of the Fifth Amendment). See ECF No. 26. Morgan's motion was referred to Magistrate Judge Patricia T. Morris. See ECF No. 29. On January 31, 2017 Respondent moved to dismiss Morgan's petition, arguing that Johnson did not affect his career offender status. On May 31, 2017 the magistrate judge issued her report, recommending that Morgan's motion to vacate be denied and that Respondent's motion to dismiss be granted. See ECF No. 32. The magistrate judge based her recommendation on the Supreme Court's decision in Beckles v. United States, in which the court held that the sentencing guidelines are not subject to void for vagueness challenges under the Fifth Amendment Due Process clause. See Beckles v. United States, No. 15-8544, 2017 WL 855781, at *3 (U.S. Mar. 6, 2017). In other words, the Supreme Court definitively held that petitioners challenging their career offender status under the sentencing guidelines could not rely on the rule articulated in Johnson.
Although the magistrate judge's report explicitly states that the parties to this action could object to and seek review of the recommendation within fourteen days of service of the report, neither party has filed any objections. The election not to file objections to the magistrate judge's report releases the Court from its duty to independently review the record. Thomas v. Arn, 474 U.S. 140, 149 (1985). The failure to file objections to the report and recommendation waives any further right to appeal. As such, the Court concludes that Petitioner has failed to make a substantial showing of the denial of a constitutional right, and a certificate of appealability is not warranted in this case. The Court further concludes that Petitioner should not be granted leave to proceed in forma pauperis on appeal, as any appeal would be frivolous. See Fed. R. App. P. 24(a).
Accordingly, it is ORDERED that the magistrate judge's report and recommendation, ECF No. 37, is ADOPTED.
It is further ORDERED that Respondent's Motion to Dismiss, ECF No. 32, is GRANTED.
It is further ORDERED that Petitioner Morgan's motion to vacate his sentence, ECF No. 26, is DENIED.
It is further ORDERED that a certificate of appealability is DENIED.
It is further ORDERED that leave to proceed in forma pauperis on appeal is DENIED.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge Dated: July 5, 2017
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on July 5, 2017.
s/Kelly Winslow
KELLY WINSLOW, Case Manager