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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:92cr4013-WS

vs. Case No. 4:04cv382-WS/WCS

MICHAEL MORGAN, 

Defendant.

 /

REPORT AND RECOMMENDATION ON AMENDED § 2255 MOTION

This cause is before the court on Defendant Michael Morgan's amended motion

to vacate sentence filed pursuant to 28 U.S.C. § 2255. Doc. 1626.

Defendant was previously advised that if he wished to file a § 2255 motion, later

motions might be subject to limitations on successive motions and there is a one year

limitations period for filing. Doc. 1622, p. 2, citing 28 U.S.C. § 2244 and 2255. 

Defendant then filed a § 2255 motion with memorandum, and was directed to file an

amended motion. Docs. 1622 and 1625. The order directing amendment advised

Defendant that his motion must include specific grounds and supporting facts on the §

2255 motion form itself, that the amended motion must be filed in its entirety, and that

matters not included in the amended motion would be deemed abandoned. Doc. 1625. 

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1

 That was the date Defendant mailed his motion for certificate of appealability. 

Doc. 1621. The motion was denied as unnecessary, in the order advising Defendant of

the limitations period and potential successive motion bar. Doc. 1622. 

Case Nos. 4:92cr4013-WS and 4:04cv382-WS/WCS

Defendant filed the amended motion now before the court last October. The

motion was not served upon the Government, and the file was set aside awaiting a

ruling in Booker (discussed ahead). Unfortunately this motion has been overlooked

since that time through no fault of Defendant.

Defendant raises three grounds in support of his § 2255 motion, addressed

separately below. Doc. 1626, pp. 3-4 (requesting an evidentiary hearing as ground

four). Even going by the earliest possible filing date of his attempt to seek § 2255 relief,

July 23, 2004,1 this § 2255 proceeding should be summarily dismissed as untimely. 

There is a one year time limit for filing a § 2255 motion, which runs from the

latest of: 

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by

governmental action in violation of the Constitution or laws of the United

States is removed, if the movant was prevented from making a motion by

such governmental action;

(3) the date on which the right asserted was initially recognized by the

Supreme Court, if that right has been newly recognized by the Supreme

Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented

could have been discovered through the exercise of due diligence.

§ 2255. 

Defendant took a direct appeal with codefendants Norris Mothersill, Errol

Morrison, Egnatius Johnson, Patrick and Paul Howell, and Patricia Clarke. The

Eleventh Circuit affirmed on July 11, 1996, in a published opinion. United States v.

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2

 The undersigned noted with respect to Defendant Mothersill (who similarly did

not file a petition for writ of certiorari) that the judgment became final for purposes of

commencing the one year period on February 24, 1997, 90 days after a petition for

rehearing filed by another defendant was denied. Doc. 1236, pp. 3-4 (noting that if a

party seeks rehearing, the 90 days for all parties runs from the denial of rehearing under

S.Ct. Rule 13.1 and 13.3). 

Case Nos. 4:92cr4013-WS and 4:04cv382-WS/WCS

Mothersill, 87 F.3d 1214 (11th Cir. 1996). Defendant did not file a petition for writ of

certiorari, so his conviction became final when the time to do so expired. Clay v. United

States, 537 U.S. 522, 123 S.Ct. 1072, 1075, 155 L.Ed.2d 88 (2003) (if a petition is not

filed, conviction becomes final when the 90 days for seeking certiorari expires). Other

defendants involved in the appeal filed petitions for writ of certiorari, the latest of which

was denied on March 24, 1997. 520 U.S. 1151 (1997). Commencing the time under

clause (1) above, Defendant's § 2255 motion filed in 2004 would be untimely even if his

conviction was not final until March 24, 1997.2 

The critical issue, therefore, is whether the time commences from the date of

finality under clause (1), or whether one of the later dates renewed the one year period. 

There is no claim (nor is there any indication) of an unlawful impediment, or of any

newly discovered facts. The only other arguably applicable commencement date is that

specified in clause (3), addressed ahead. 

Defendant asserts as ground one of his amended motion that the court exceeded

its jurisdiction in enhancing his sentence based on uncounseled juvenile convictions in

violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). 

Doc. 1626, p. 3. Specifically, "Morgan was awarded 3 criminal history points for juvenile

delinquency adjudications. Morgan was not afforded counsel during these proceedings

neither did he waived [sic] his right to counsel." Id. According to the PSR, Defendant

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3

 Tucker was before the Court in the context of a § 2255 motion challenging the

use of prior state convictions at trial and sentencing. A state court had determined that

defendant's 1938 and 1946 convictions were constitutionally invalid because

uncounseled, with no advice of the right to counsel and no knowing waiver of counsel. 

404 U.S. at 444-445, 92 S.Ct. at 590. As noted in a footnote, the 1938 sentence was

imposed when the defendant was a juvenile. Id., at 444, n. 1, 92 S.Ct. at 590, n. 1. See

also Lindsey v. Smith, 820 F.2d 1137, 1154 (11th Cir.1987), cert. denied, 489 U.S. 1059

(1989) (the argument was raised that because several of petitioner's juvenile

convictions were uncounseled, his death sentence was invalid under Tucker, but the

court did not need to decide whether this construction of Tucker was correct). 

Case Nos. 4:92cr4013-WS and 4:04cv382-WS/WCS

received one point each for three separate juvenile offenses, resulting in a criminal

history score of three (criminal history category II). ¶ ¶ 95-97, 99. There is no mention

in the PSR of whether or not he was represented by counsel or waived counsel. 

Defendant asserts that ground one was not previously raised due to ineffective

assistance of counsel at the federal sentencing. Doc. 1626, p. 4. Ineffective assistance

of counsel is not a possible commencement date for the limitations period. Indeed, a

claim of ineffectiveness of counsel at sentencing, along with the Gideon claim as

alleged here, arose before the judgment became final and could have been raised

within one year from that date. Long before Defendant's sentencing, the Supreme

Court had determined that a conviction obtained without counsel or a waiver of counsel

was unconstitutional and improperly relied upon in a federal sentencing. See Burgett v.

Texas, 389 U.S. 109, 114-115, 88 S.Ct. 258, 261-262, 19 L.Ed.2d 319 (1967) (holding

that use of prior conviction, where there was no representation by counsel or waiver of

counsel, could not be used for sentence enhancement under Gideon); United States v.

Tucker, 404 U.S. 443, 449, 92 S.Ct. 589, 593, 30 L.Ed.2d 592 (1972) (citing Gideon and

Burgett);3

 Custis v. United States, 511 U.S. 485, 493-496, 114 S.Ct. 1732, 1737-38, 128

L.Ed.2d 517 (1994) (discussing Gideon, and Burgett and Tucker, other citations

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4

 Defendant asserts, as addressed separately, that ground two was not

previously raised as it is based on Blakely and Booker. Though Defendant does not

base ground one on the same legal rationale, it is noted that the line of cases

culminating in Booker left undisturbed Supreme Court precedent that excluded prior

convictions. See United States v. Orduno-Mireles, 405 F.3d 960, 962 (11th Cir. 2005)

(even after Booker, "recidivism is not a separate element of an offense that the

government is required to prove beyond a reasonable doubt.") (citations omitted). 

Case Nos. 4:92cr4013-WS and 4:04cv382-WS/WCS

omitted) (holding that defendant may not challenge validity of prior conviction at federal

sentencing, with exception of conviction obtained in violation of right to counsel);

Daniels v. United States, 532 U.S. 374, 378-384, 121 S.Ct. 1578, 1582-84, 149 L.Ed.2d

590 (2001) (extending Custis rationale to § 2255 challenge; noting that "[a] defendant

may challenge a prior conviction as the product of a Gideon violation in a § 2255

motion, but generally only if he raised that claim at his federal sentencing proceeding.")

(citations omitted). 

Defendant does not assert, and there is no showing, that ground one is based on

a "right . . . newly recognized by the Supreme Court and made retroactively applicable

to cases on collateral review" under clause (3).4 The motion, therefore, is untimely as to

ground one.

Defendant asserts as § 2255 ground two that his offense was enhanced under

the sentencing guidelines in violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct.

2531, 159 L.Ed.2d 403 (2004). Doc. 1626, p. 3. Defendant asserts that he received an

increase to his offense level based on role in the offense, obstruction of justice,

possession of a firearm, and drug quantity, factors which were not determined by the

jury beyond a reasonable doubt. Id.

Defendant asserts that ground two was never previously raised because based

on recent rulings of the Supreme Court. Doc. 1626, p. 4. Defendant's claim is based on

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5

 In Apprendi, the Court "confirm[ed] the opinion that we expressed in [Jones v.

United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)]. Other than the

fact of a prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt." 530 U.S. at 490, 120 S.Ct. at 2362-63.

6 See also Guzman v. United States, 404 F.3d 139, 140 (2d Cir. 2005) (agreeing

with the Sixth, Seventh, Tenth, and Eleventh Circuits that Booker is not retroactive)

(citing Varela, other citations omitted); Lloyd v. United States, 407 F.3d 608, 615-616

(3d Cir. 2005) (joining the other circuits, collecting cases). 

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Blakely and United States v. Booker, 543 U.S. , 125 S.Ct. 738, 160 L.Ed.2d 621

(2005) (decided after Defendant's amended § 2255 motion was filed, applying Blakely to

the Federal Sentencing Guidelines). These in turn were extensions of the holding in

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).5 See

also, Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). 

A Blakely or Booker claim does not commence from the later date under clause

(3) for claims based on a right "newly recognized" by the Supreme Court, however, as

the right has not been "made retroactively applicable to cases on collateral review." 

Varela v. United States, 400 F.3d 864, 867 (11th Cir. 2005) (Blakely and Booker do not

apply retroactively on collateral review); McCoy v. United States, 266 F.3d 1245, 1256-

58 (11th Cir. 2001), cert. denied, 536 U.S. 906 (2002) (Apprendi does not apply

retroactively on collateral review).6 

Defendant asserts as ground three that the Government presented hearsay in

violation of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177

(2004). Doc. 1626, p. 4. He asserts that "the Government presented testimonial

statements of several witnesses who although available, was [sic] not called to testify by

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Case Nos. 4:92cr4013-WS and 4:04cv382-WS/WCS

the Government." Id. Like ground two, Defendant asserts that ground three was never

previously raised because based on recent rulings of the Supreme Court. Id. 

In Crawford, the Court held that "[w]here testimonial evidence is at issue . . . the

Sixth Amendment demands what the common law required: unavailability and a prior

opportunity for cross-examination." 541 U.S. at 68, 124 S.Ct. at 1374. While not

defining "testimonial," the Court said the term "applies at a minimum to prior testimony

at a preliminary hearing, before a grand jury, or at a former trial; and to police

interrogations." Id. 

Defendant does not identify by name the "several" witnesses whose testimonial

statements were allegedly presented in violation of Crawford, or describe the substance

of the testimonial statements. The claim is therefore insufficient on its face. But even if

properly supported, the Crawford claim is untimely for the same reason set forth

regarding the Booker claim. It is not a "newly recognized" right which has also been

"made retroactively applicable to cases on collateral review" for purposes of

commencing the period under clause (3). See Brown v. Uphoff, 381 F.3d 1219, 1226-

27 (10th Cir. 2004) (Crawford announced a new rule which does not apply retroactively

under Teague), cert. denied, 125 S.Ct. 940 (2005); Mungo v. Duncan, 393 F.3d 327,

335-336 and n. 8 (2d Cir. 2004) (same, noting Uphoff), cert. denied, 125 S.Ct. 1936

(2005); Bintz v. Bertrand, 403 F.3d 859, 865, 866-867 and n. 5 (7th Cir. 2005) (same,

noting Brown and Mungo); Evans v. Luebbers, 371 F.3d 438, 444-45 (8th Cir. 2004)

(noting that Crawford did not appear to apply retroactively, but even if it did it did not

apply to that case), cert. denied, 125 S.Ct. 902 (2005). But see Bockting v. Bayer, 399

F.3d 1010, 1020-21 (9th Cir. ) (finding, contrary to Uphoff and Mungo, that Crawford

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7

 Should this recommendation be adopted and Defendant seek a certificate of

appealability on this point, however, he would have to set forth facts (including but not

limited to a description of each testimonial statement at issue) to show that Crawford

would even apply here. 

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applies retroactively), opinion amended on denial of petition for panel rehearing 408

F.3d 1127 (9th Cir. June 1, 2005) (noting there that a petition for rehearing en banc

remained pending); Lave v. Dretke, F.3d , 2005 WL 1581090 at *4 (5th Cir. July 7,

2005) (noting that the Fifth Circuit had not yet decided the retroactivity of Crawford, the

circuits were in conflict and so reasonable jurists could debate the issue, granting a

certificate of appealability) (collecting cases).7

 

The limitations period is one year. As none of Defendant's claims restarts the

one year period from a date later than that on which the judgment of conviction became

final, the entire § 2255 proceeding is untimely. 

It is therefore respectfully RECOMMENDED that Defendant Morgan's amended §

2255 motion, doc. 1626, SUMMARILY DISMISSED as untimely. 

IN CHAMBERS at Tallahassee, Florida, on July 25, 2005.

s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

 

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10

days after being served with a copy thereof. Failure to file specific objections

limits the scope of review of proposed factual findings and recommendations.

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