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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

vs. Case No: 3:97cr78/RV 

3:05cv189/RV/MD

GHASSEN GEORGE MOUREY

REPORT AND RECOMMENDATION

Defendant filed a motion to vacate, set aside, or correct sentence pursuant to

28 U.S.C. § 2255 (doc. 96). The government moved to dismiss the motion as

successive (doc. 98) and the defendant has replied. (Doc. 100). The matter is

referred to the undersigned magistrate judge for report and recommendation

pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). Upon consideration, the

motion should be denied, and the government directed to respond.

I. BACKGROUND

Defendant pleaded guilty to conspiracy to possess with intent to distribute

cocaine and methamphetamine and possession with intent to distribute cocaine on

a date certain. (Doc. 39). On November 10, 1997, he was sentenced to a term of life

imprisonment on count one and 262 months on Count 2, to run concurrently. (Doc.

57). He timely appealed, but then filed a notice of voluntary dismissal of the appeal.

(Doc. 59 & 75).

On July 12, 1999, approximately one year after dismissing his appeal,

defendant filed a motion to vacate pursuant to 28 U.S.C. § 2255. (Doc. 78). In the

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motion, through counsel, defendant claimed that the government had not honored

its side of the plea agreement because he had not received sentence credit for the

assistance he had rendered to law enforcement. The government responded (doc.

84) and in response on October 19, 1999, defendant moved to abate his § 2255

motion during the pendency of his cooperation in investigations in the state of

California. (Doc. 87 & 88). The motion was denied on October 27, 1999 with the

notation that the defendant could dismiss the case and refile at a later date. (Doc.

90). No action was taken by the defendant, and on July 11, 2000, the presiding

magistrate judge entered a recommendation that the motion be denied on the merits.

(Doc. 91). This recommendation was adopted without objection on August 7, 2000.

(Doc. 93).

On May 20, 2004, in apparent response to a sealed motion, defendant’s life

sentence was reduced to a term of 198 months imprisonment, and his sentence on

count two was reduced from 262 to 131 months. (Doc. 95). The instant motion was

docketed on May 20, 2005. 

In his pending § 2255 motion, defendant again contends that the government

failed to fully inform the court of his cooperative assistance, and maintains that he

provided substantial information and assistance for which he was not “properly

compensated.” He asserts that he is entitled to an “open-ended rule 35 hearing,

where there is no pre-determined sentence.” He specifically contends that he

provided information regarding 17 individuals, but that he has received “credit” only

for the guilty pleas of three of those persons. (Doc. 96, memorandum at 9). 

Although the plea agreement the government allegedly has breached was part

of the first sentencing proceeding and the issue raised herein is related to the claim

previously made, clearly the motion is directed towards the results of resentencing

proceedings. As such, it is the first § 2255 to address the resentencing. Other

courts who have addressed the meaning of successive in such cases have found

that challenges to issues that could only have resulted from the resentencing are not

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successive. See In re Taylor, 171 F.3d 185, 188 n. * (4th Cir. 1999) (stating the district

court is “in the best position to separate the ‘new’ issues from any which existed at

the time the applicant filed an earlier § 2255 motion and to limit his consideration of

the motion accordingly”); Walker v. Roth, 133 F.3d 454, 455 n. 1 (7th Cir. 1997) (“Of

course, had Walker sought to challenge aspects of his conviction [as opposed to

aspects of his resentencing] the district court would have been correct in dismissing

his petition as successive.”); Galtieri v. United States, 128 F.3d 33, 37-38 (2nd Cir.

1997) (“[W]henever a first 2255 petition succeeds in having a sentence amended, a

subsequent 2255 petition will be regarded as a ‘first’ petition only to the extent that

it seeks to vacate the new, amended component of the sentence, and will be

regarded as a ‘second’ petition to the extent that it challenges the underlying

conviction or seeks to vacate any component of the original sentence that was not

amended.”) cited in Walker v. Crosby, 341 F.3d 1240, 1245 n.4 (11th Cir. 2003).

Although the defendant’s resentencing was not a result of the previous

unsuccessful § 2255 motion, the Galtieri logic applies herein. The defendant’s claim

that he received credit for only part of the assistance he provided could not arise

until resentencing when he presumably learned which assistance would be factored

into the new sentence. Therefore, the government’s motion to dismiss the

defendant’s § 2255 motion as successive should be denied and it should be directed

to respond to the merits of the motion. 

Based on the foregoing, it is respectfully RECOMMENDED:

The government’s motion to dismiss the § 2255 motion to vacate be denied,

and it be directed to respond to the merits of defendant’s motion within thirty (30)

days of an order adopting this recommendation. 

At Pensacola, Florida, this 18

th day of July, 2005.

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

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NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within ten

days after being served a copy thereof. A copy of objections shall be served upon the

magistrate judge and all other parties. Failure to object may limit the scope of appellate

review of factual findings. See 28 U.S.C. § 636; Local Rule 27(B); United States v. Roberts,

858 F.2d 698, 701 (11th Cir. 1988).

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