Morgan v. United States of America
REPORT AND RECOMMENDATIONS dismissing 3 MOTION to Vacate filed by Tacarro Morgan. Objections to R&R due by 3/10/2017. Signed by Magistrate Judge G. R. Smith on 2/24/17. (jlm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
UNITED STATES OF AMERICA,
REPORT AND RECOMMENDATION
This Court denied Tacarro Morgan's first 28 U.S.C. § 2255 motion
on the merits nearly a year ago, does. 301 & 36;
doe. 57 (mandate of
11th Circuit denying movant's motion for a certificate of appealability
because she had not made a substantial showing of the denial of a
constitutional right), and her second as an unauthorized successive
motion in August 2016, does. 46-1 & 49. Morgan has returned with a
third § 2255 motion, without a hint as to the prior procedural history,
see doc. 60 at 3 (disingenuously stating she has not filed any appeal,
motion, petition, or other application in any court), 2 and without
The Court is citing to the criminal docket in CR613-018 unless otherwise noted,
and all page numbers are those imprinted by the Court's docketing software.
Morgan is reminded that those who lie to this Court are prosecuted.
permission from the Eleventh Circuit to do so, contending she has only
recently discovered sentencing errors made by the district court, id. at 4
& 6 -- oddly enough, the exact argument already seen and rejected in
her prior two (unacknowledged) motions. Compare does. 19, 43 & 60.
As Morgan has already been warned,
"[b]efore 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.
Secv, Fla. Dept 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.
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.
United States, 2014 WL 4204927 at *1, n. 4 (S.D. Ga. Aug. 25, 2014). Lying under
oath, either live or "on paper," is illegal. See United States v. Roberts, 308 F.3d 1147,
1155 (11th Cir. 2002); United States v. Dickerson, No. CR608-36, doe. 1 (S.D. Ga. Dec.
11, 2008) (§ 2255 movant indicted for perjury for knowingly lying in his motion
seeking collateral relief from his conviction); id., doe. 47 (guilty verdict), cited in Irick
v. United States, 2009 WL 2992562 at * 2 (S.D. Ga. Sept. 17, 2009 (unpublished); see
also Colony Ins. Co. v. 9400 Abercorn, LLC, 866 F. Supp. 2d 1376, 1378 n. 2 (S.D. Ga.
Doe. 46-1 at 2-3. Morgan still has no authorization from the Eleventh
Circuit to renew her already-rejected claims that the district court made
sentencing errors in calculating her criminal history and denying an
acceptance of responsibility reduction. See doe. 60. This Court thus has
no authority to hear it.
Accordingly, Tacarro Morgan's § 2255 motion 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).
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
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
recommendation 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. VA. Leasing Corp.,
648 F. App'x 787, 790 (11th Cir. 2016); Mitchell v. U.S., 612 F. App'x
542, 545 (11th Cir. 2015).
SO REPORTED AND RECOMMENDED, this 24th day of
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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