Morgan v. USA
Filing
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OPINION & ORDER denying 3 Motion for Resentencing; denying 5 Motion for Leave to Proceed in forma pauperis; adopting 8 Report and Recommendation; denying 1 Motion to Vacate, Set Aside or Correct Sentence; no certificate of appealability will issue. Signed by U.S. District Judge Roberto A. Lange on 5/8/14. (JLS)
FILED
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DNISION
THOMAS O. MORGAN,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
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CN 14-3003
MAY 082014
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OPINION AND ORDER
ADOPTING REPORT AND
RECOMMENDATION AND
DENYING § 2255 MOTION
On March 3, 2014, Thomas O. Morgan filed a Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255, Doc. 1, a "Motion for Resentencing," Doc. 3, and a motion
to proceed in fonna pauperis, Doc. 5. Based on 28 U.S.c. § 636(b)(1)(B) and Rule 8(b) of the
Rules Governing Section 2255 Proceedings, this Court referred the case to Magistrate Judge
Mark A. Moreno.
Doc. 7.
On April 4, 2014, Judge Moreno issued a Report and
Recommendation recommending denial of Morgan's § 2255 motion and his motion for
resentencing because they were neither cognizable norrequests for which relief could be granted.
Doc. 8. Judge Moreno further recommended that Morgan's motion to proceed in fonna pauperis
be denied and that this Court dispose of Morgan's § 2255 motion and motion for resentencing
without appointing counselor holding an evidentiary hearing. Doc. 8.
This Court reviews a report and recommendation pursuant to the statutory standards
found in 28 U.S.C. § 636(b)(1), which provides in pertinent part that "[a] judge of the [district]
court shall make a de novo detennination of those portions of the report or specified proposed
findings or recommendations to which objection is made." "In the absence of an objection, the
district court is not required 'to give any more consideration to the magistrate's report than the
court considers appropriate.'" United States v. Murillo-Figueroa, 862F. Supp. 2d 863, 866 (N.D.
Iowa 2012) (quoting Thomas v. Am, 474 U.S. 140, 150 (1985».
Here, Morgan has not filed any objections to the Report and Recommendation and the
fourteen days for doing so has passed. Accordingly, this Court has reviewed the Report and
Recommendation under a clearly erroneous standard of review. See Grinder v. Gammon, 73
F.3d 793, 795 (8th Cir. 1996) (per curiam) (explaining that when no objections are filed and the
time for filing objections has expired, the district court "would only have to review the findings
ofthe magistrate judge for clear error"). Finding no clear error, this Court adopts the Report and
Recommendation.
For the foregoing reasons, it is hereby
ORDERED that Morgan's § 2255 motion, Doc. 1, motion for resentencing, Doc. 3, and
motion to proceed in forma pauperis, Doc. 5, are denied. It is further
ORDERED that the Clerk ofCourt provide a copy ofthis Opinion and Order to Morgan.
It is further
ORDERED that no certificate of appealability under Rule I 1(a) of the Rules Governing
Section 2255 Proceedings for the United States District Courts will issue. It is finally
ORDERED, ADJUDGED AND DECREED that judgment of dismissal in favor of the
Government and against Morgan under Rules 54 and 58 ofthe Federal Rules of Civil Procedure
hereby enters.
Dated May~ 2014.
BY THE COURT:
ROBERTO A. LAN E
UNITED STATES DISTRICT JUDGE
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