Opinion
CASE NO. 1:94-cr-01011-MP-AK.
August 27, 2007
ORDER
This matter is before the Court on Doc. 969, Report and Recommendation of the Magistrate Judge, which recommends that Defendant Taylor's Motion to Recall Judgment, Doc. 954, be denied as an unauthorized second or successive habeas petition. The Magistrate Judge filed the Report and Recommendation on Friday, August 3, 2007. The parties have been furnished a copy of the Report and have been afforded an opportunity to file objections. Pursuant to Title 28, United States Code, Section 636(b)(1), this Court must make a de novo review of those portions to which an objection has been made.
Defendant was charged and convicted of conspiracy to possess with intent to distribute cocaine and crack cocaine, and he was sentenced to life imprisonment. Defendant appealed his sentence and conviction, which were affirmed by the Eleventh Circuit. After this, Defendant filed a motion to vacate under 28 U.S.C. § 2255, raising many of the same grounds presented in the instant motion. The Court denied the motion to vacate, and the Eleventh Circuit denied Defendant's request for a certificate of appealability for failure to make a substantial showing of the denial of a constitutional right, and denied leave to proceed in forma pauperis on appeal.
In his Motion to Recall Judgment, Doc. 954, Defendant argues that the Court was without jurisdiction to try him for the offense of conviction, that fraud was perpetrated upon the Court, and that he is actually innocent of the charged offense. The gist of these claims is that the indictment was fundamentally defective and failed to give Defendant notice of the statutorily-mandated life sentence. To get around the prohibition on filing an unauthorized second or successive habeas petition, Defendant states that jurisdictional matters can be raised at any time, and that sole purpose of the instant motion is to recall the judgment denying his 28 U.S.C. § 2255 motion because of the Court's lack of jurisdiction. As the Magistrate points out, regardless of the styling of a claim, if it seeks to relitigate claims presented in a prior habeas application, the prohibition on second or successive motions to vacate applies. It is clear that Defendant is attempting to evade this prohibition, as the basis for his argument on the Court's jurisdiction has been repeatedly raised and repeatedly rejected. Therefore, having considered the Report and Recommendation, and the objections thereto, I have determined that it should be adopted. Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. The Report and Recommendation of the Magistrate Judge is adopted and incorporated herein.
2. Defendant's Motion to Recall Judgment, Doc. 954, is DENIED.
DONE AND ORDERED.