Monsegue, Sr. v. United States of America

Filing 50

ORDER denying 49 MOTION to Amend/Correct 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Frank D. Monsegue, Sr. REPORT AND RECOMMENDATIONS dismissing the successive 2255 re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Frank D. Monsegue, Sr. (Objections to R&R due by 7/17/2019). Signed by Magistrate Judge James E. Graham on 7/3/19. (wwp) Modified on 7/3/2019 (wwp).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
FRANK D. MONSEGUE,
Movant,
v.
UNITED STATES,
Respondent.

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CV416-021
CR414-019

ORDER AND REPORT AND RECOMMENDATION
Long after his initial motion to vacate his sentence was denied on
the merits, CR414-019, docs. 136 & 142, see also docs. 153 (denying
certificate of appealability) & 166 (denying writ of certiorari), and after
swinging at relief under specious theories of civil rights theories
attendant to his federal criminal prosecution, CV418-239, docs. 10 & 13,
Monsegue is back and seeks to amend his initial 28 U.S.C. § 2255 motion.
Doc. 172.

Monsegue contends he has discovered new evidence to

relitigate the claims already denied on the merits. Id. at 172 at 3-5.
This motion, however, is nothing more than a “thinly veiled attempt
to circumvent the limitation on second or successive motions.” United
States v. Middleton, 2013 WL 5671161 at *1 (N.D. Fla. Oct. 17, 2013).
The Court thus lacks jurisdiction to entertain it.

To file a second or successive § 2255 motion, the movant is required
to first file an application with the appropriate court of appeals for an
order authorizing the district court to consider the motion. 28 U.S.C.
§ 2244(b)(3)(A); Farris v. United States, 333 F.3d 1211, 1216 (11th Cir.
2003). A panel of the court of appeals must certify that the second or
successive motion contains:
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to establish
by clear and convincing evidence that no reasonable factfinder
would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously
unavailable.
28 U.S.C. § 2255(h); In re Anderson, 396 F.3d 1336, 1337 (11th Cir. 2005).
“Without authorization” from the court of appeals, a “district court lack[s]
jurisdiction to consider [a movant’s] second or successive” motion. Carter
v. United States, 405 F. App’x 409, 410 (11th Cir. 2010).
Monsegue has not received authorization from the Eleventh Circuit
to file a successive motion. This Court thus lacks jurisdiction to consider
his motion. In re Bradford, 830 F.3d 1273, 1277 (11th Cir. 2016); United
States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005); see also Medberry v.
Crosby, 351 F.3d 1049, 1061 (11th Cir. 2003) (“when a federal prisoner’s
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claims fall within the ambit of § 2255, the prisoner is subject to that
section’s restrictions”). Monsegue’s motion to “amend/reopen” his § 2255
motion is therefore DENIED, and his successive § 2255 motion should be
DISMISSED.
This Report and Recommendation (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.
After 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 F. App’x 787, 790 (11th Cir. 2016); Mitchell v. United States, 612 F.
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App’x 542, 545 (11th Cir. 2015).
SO ORDERED AND REPORTED AND RECOMMENDED, this
3rd day of July, 2019.

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