UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff-Petitioner, Case No. 14-20427-05 

v Honorable Thomas L. Ludington 

MELVIN ANDREW MORRIS, 

 

 Defendant-Respondent. 

___________________________________/ 

ORDER OVERRULING PETITIONER’S OBJECTIONS, SUSTAINTING IN PART 

AND OVERRULING IN PART RESPONDENT’S OBJECTIONS, ADOPTING THE 

REPORT AND RECOMMENDATION IN PART, DENYING THE MOTIONS TO 

VACATE SENTENCE, DENYING MOTION FOR LEAVE TO AMEND MOTION TO 

VACATE, GRANTING MOTION TO DISMISS MOTIONS TO VACATE, GRANTING 

MOTION TO STRIKE, DENYING A CERTIFICATE OF APPEALABILITY, AND 

DENYING LEAVE TO APPEAL IN FORMA PAUPERIS 

On July 24, 2014, Petitioner Melvin Andrew Morris was indicted on five counts of aiding 

and abetting the distribution of cocaine base. ECF No. 13. On September 23, 2015, a first 

superseding indictment was issued and he was indicted for one count of distribution of cocaine 

base and five counts of aiding and abetting the distribution of cocaine base. ECF No. 170. On 

November 30, 2015, the Government filed a motion to dismiss the five counts of aiding and 

abetting the distribution of cocaine. ECF No. 184. On December 1, 2015, the motion was granted, 

leaving only the count for distribution of cocaine base remaining. ECF No. 185. A jury trial was 

held and Petitioner was found guilty of distribution of cocaine base. ECF No. 187. 

Petitioner had two prior felony domestic assault convictions under M.C.L. §750.81(2). 

ECF No. 279 at 2. The court determined that these convictions were crimes of violence which 

qualified Petitioner as a career offender under the United States Sentencing Guideline §4B1. Id. 

Petitioner was sentenced to 180 months imprisonment. ECF No. 210. 

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That same day, Petitioner filed a notice of appeal with the Sixth Circuit. ECF Nos. 211, 

212. In his appeal, Petitioner challenged his sentence, “arguing that his two prior felony 

convictions for domestic assault under Michigan Compiled Laws (M.C.L.) §750.81 [were] not 

crimes of violence under §4B1.2.” ECF No. 279 at 2. The Sixth Circuit affirmed the district court’s 

sentencing and concluded that “a conviction under M.C.L. §750.81 is a crime of violence under 

the residual clause of the Guidelines.” Id. 

On November 26, 2018, Petitioner filed a motion for retroactive application of sentencing 

guidelines. ECF No. 286. He argued that his prior convictions under M.C.L. 750.81 did not qualify 

as crimes of violence under the residual clause of §4B1 of the Sentencing Guidelines. Id. at 3. The 

motion was denied and the decision affirmed on appeal. 

 On September 17, 2019, Petitioner filed a motion for discovery. ECF No. 293. The motion 

was denied because Plaintiff had no motions pending that required the requested discovery. 

 Petitioner has now filed two motions to vacate his sentence pursuant to 28 U.S.C. § 2255 

and a motion for leave to amend his initial § 2255 motion. ECF Nos. 295, 297, 303. The 

Government filed a motion to dismiss Petitioner’s motions to vacate. ECF No. 301. It also filed a 

motion to strike Petitioner’s motion to amend because the original motions were untimely and the 

motion to amend contained factual inaccuracies. ECF Nos. 301, 306. The motions were referred 

to Judge Morris who recommended that Petitioner’s motions be denied as untimely and the 

Government’s motions granted. 

 The Government and Petitioner filed objections to Judge Morris’ report. For the following 

reasons, the Petitioner’s objections will be overruled, the Government’s objections will be 

sustained in part and overruled in part, and the Report and Recommendation will be adopted in 

part. 

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I. 

The timing of Petitioner’s submission of his motions is important to the resolution of the 

case. Judge Morris explained receipt of the different motions as follows. 

Petitioner signed a Motion to Vacate, Set Aside or Correct Sentence under 28 

U.S.C. §2255 on October 1, 2019, and it was somehow hand delivered to this 

federal court on November 5, 2019. (ECF No. 295.) In addition, Petitioner dated 

another Motion to Vacate on October 2, 2019, but the return address on the 

envelope was Fait Accompli Legal Services, in Dearborn, Michigan, and it was 

postmarked October 29, 2019, and received by the Clerk of the Court on October 

30, 2019. (ECF No. 297.) On December 13, 2019, the government filed a motion 

to dismiss the Motions to Vacate. (ECF No. 301.) 

Petitioner filed a motion for leave to amend his Motions to Vacate dated December 

4, 2019, stamped as placed in the prison mail system on December 4, 2019, and efiled on January 3, 2020. (ECF No. 303.) Petitioner contends that he needs to amend 

because the information he provided was incorrect because he “filed his first motion 

under 28 U.S.C. Section 2255 on September 28, 2019, by depositing it in the legal 

mail as per the legal mail procedures of FCI Gilmer. Postage for first class mail 

were prepared.” (ECF No. 303, PageID.2012.) 

On January 14, 2020, the government filed a motion to strike Petitioner’s motion 

for leave to file an amended Motion to Vacate. (ECF No. 306.) In its motion to 

strikes [sic], the government argues this claim is disingenuous because when 

Petitioner placed documents in the prison mail system, the document’s envelope 

was stamped by the prison yet there is no such stamp on ECF No. 295 or 297. (ECF 

No. 306, PageID.2026, comparing ECF No. 303 that does show the prison stamp.) 

ECF No. 295 was hand delivered so no prison mail stamp would be expected there. 

ECF No. 297 was mailed to the court by Fait Accompli Legal Services so Petitioner 

could have placed this motion in the prison mail to be delivered to Fait Accompli 

but Fait Accompli failed to preserve this evidence or forward it to the Court, if it 

exists. 

ECF No. 310 at PageID.2039-2040. 

 Judge Morris determined that both motions to vacate were untimely because Petitioner 

filed them more than a year after his judgment became final. 

[S]ince Petitioner appealed and eventually sought a writ of certiorari, his case 

became final on the date the writ of certiorari was denied. The government argues 

that the operative date is the date of denial, October 1, 2018, rather than the date it 

was filed, i.e., October 2, 2018. (ECF No. 301, PageID.2006.) Research has not 

revealed any case dealing with the specific question as to whether the date of the 

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document or the filing date is the operative date. In order to view the case most 

favorably for the Petitioner, I will consider the October 2, 2018 date to be the 

operative date. 

Using October 2, 2018 as the salient date, Petitioner would have to file his Motion 

by October 2, 2019 to be timely. 

The prison mailbox rule allows a document to be considered filed when it is handed 

to prison authorities for mailing to the Court. Towns v. United States, 190 F.3d 468, 

469 (6th Cir. 1999) (prison mailbox rule applies to 2255 motions). However, since 

neither of Petitioner’s 2255 motions (ECF No. 2295, 297) were stamped as placed 

in the prison mailing system, this rule is of no help to Petitioner. Petitioner signed 

a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. §2255 on 

October 1, 2019, and it was somehow hand delivered to this federal court on 

November 5, 2019. (ECF No. 295.) In addition, Petitioner dated another Motion to 

Vacate on October 2, 2019, but the return address on the envelope was Fait 

Accompli Legal Services, in Dearborn, Michigan, and it was postmarked October 

29, 2019, and received by the Clerk of the Court on October 30, 2019. (ECF No. 

297.) Petitioner may have placed this motion in the prison mail to be delivered to 

Fait Accompli but Fait Accompli failed to preserve this evidence or forward 

it to the Court, if it exists. Even if Petitioner had placed a draft of the Motion in the 

prison mail system on October 2, 2019, to be sent lawyers [sic] at Fait 

Accompli for their assistance, the prison mailbox rule would not provide any relief 

since the “mailbox rule applies only to (1) court filings (2) submitted by pro se 

prisoners” to the court. Williams v. Russo, 636 F. App’x 527, 531 (11th Cir. 2016). 

It does not apply to communications sent to lawyers to be reviewed and then 

forwarded to the court. 

The motion from Fiat [sic] Accompli was postmarked October 29, 2019, long after 

the deadline of October 2, 2019 passed. (ECF No. 297.) The document that 

was hand delivered was not received until November 5, 2019, and there is no 

explanation for any delay between the signing of the motion and its delivery. (ECF 

No. 295.) Accordingly, I suggest that both were untimely filed. 

 

ECF No. 310 at PageID.2043-2044. 

 She further recommended that even if Petitioner’s motions were to be considered on the 

merits, Petitioner’s allegations of ineffective assistance of counsel were “woefully inadequate.” 

Id. at PageID.2045. She also recommended denying Petitioner’s motion to amend his motion to 

vacate because his proposed amendments would not save his complaint from its fatal deficiencies. 

Id. at 2046-2047. 

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II. 

Pursuant to Federal Rule of Civil Procedure 72, a party may object to and seek review of a 

magistrate judge’s report and recommendation. See Fed. R. Civ. P. 72(b)(2). Objections must be 

stated with specificity. Thomas v. Arn, 474 U.S. 140, 151 (1985) (citation omitted). If objections 

are made, “[t]he district judge must determine de novo any part of the magistrate judge’s 

disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). De novo review requires 

at least a review of the evidence before the magistrate judge; the Court may not act solely on the 

basis of a magistrate judge’s report and recommendation. See Hill v. Duriron Co., 656 F.2d 1208, 

1215 (6th Cir. 1981). After reviewing the evidence, the Court is free to accept, reject, or modify 

the findings or recommendations of the magistrate judge. See Lardie v. Birkett, 221 F. Supp. 2d 

806, 807 (E.D. Mich. 2002). 

Only those objections that are specific are entitled to a de novo review under the statute. 

Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). “The parties have the duty to pinpoint those 

portions of the magistrate’s report that the district court must specially consider.” Id. (internal 

quotation marks and citation omitted). A general objection, or one that merely restates the 

arguments previously presented, does not sufficiently identify alleged errors on the part of the 

magistrate judge. See VanDiver v. Martin, 304 F. Supp. 2d 934, 937 (E.D. Mich. 2004). An 

“objection” that does nothing more than disagree with a magistrate judge’s determination, “without 

explaining the source of the error,” is not considered a valid objection. Howard v. Sec’y of Health 

and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Without specific objections, “[t]he functions 

of the district court are effectively duplicated as both the magistrate and the district court perform 

identical tasks. This duplication of time and effort wastes judicial resources rather than saving 

them, and runs contrary to the purposes of the Magistrate’s Act.” Id. 

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III. 

A. 

Petitioner has raised two objections to Judge Morris’ report. Petitioner’s objections will be 

overruled. 

First, he contends that Judge Morris erred by not considering his response to the 

Government’s motion to dismiss in which he claimed that both of the § 2255 motions (ECF Nos. 

295, 297) had been forged. His response brief provides: 

[T]he two 2255 motions described in the government’s Motion to Dismiss are 

forged, unauthorized documents. Defendant has never seen these documents, nor 

signed them. They were filed after defendant fired the legal service and after 

defendant had already filed his own pro se motion. 

ECF No. 308 at PageID.2031. 

Petitioner has provided no evidence to support his claim that the two § 2255 motions were 

not authorized by him. Furthermore, even if such a claim were true, Petitioner would have no relief 

available because there would be no other docketed § 2255 motions. He claims that he filed a 

separate pro se § 2255 motion, but there is no record of such a motion being filed nor does 

Petitioner furnish any evidence to support such a claim. The only claim for relief left would be 

Petitioner’s motion to amend his pro se § 2255 motion, ECF No. 303, of which there is no record. 

However, as explained by Judge Morris, this motion to amend lacks merit. Petitioner’s first 

objection will be overruled. 

 In his second objection, Petitioner argues that Judge Morris incorrectly characterized the 

evidence presented against Petitioner at trial as being “overwhelming.” ECF No. 312 at 

PageID.2056–57. To the contrary, he claims that the evidence was minimal, consisting only of the 

testimony of a confidential informant and a video interpreted by a law enforcement officer. 

Regardless of whether the evidence was overwhelming or minimal, Petitioner does not explain 

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how this supports his claims of ineffective counsel or how the evidence would have improperly 

swayed the jury. Due to its lack of specificity, Petitioner’s second objection will be overruled. 

Petitioner has not furnished evidence to support his claim that the two § 2255 motions on 

the docket were not authorized by him. Additionally, Petitioner’s motion to amend contains 

information that conflicts with his other representations and lacks merit. Accordingly, Judge 

Morris’ report will be adopted on these matters, specifically her recommendation granting the 

Government’s motion to dismiss the § 2255 motions and the Government’s motion to strike 

Petitioner’s motion to amend. 

B. 

 The Government filed two objections to Judge Morris’ report. It represents that the 

objections were “merely filed to address a couple of inaccuracies in the Report and 

Recommendation that do not appear to have an impact on the final outcome of this case, but are 

raised for the record.” ECF No. 311 at PageID.2050. 

In its first objection, the Government argues that Petitioner’s judgment became final on 

October 1, 2018, not October 2, 2018 as provided in the Report and Recommendation. ECF No. 

311. The Government explains that on October 1, 2018, the Supreme Court denied Petitioner’s 

writ of certiori. It attaches as an exhibit the docket entry from the Supreme Court denying 

Petitioner’s writ on October 1, 2018. Id. at PageID.2051. The Government is correct that this is 

the date upon which Petitioner’s judgment was finalized. Its first objection will be sustained. 

In its second objection, the Government argues that Judge Morris erred when she stated 

that Petitioner may have placed his § 2255 motion in the mail to Fait Accompli. The Government 

contends that this factual narrative is impossible because Petitioner claimed that his first two 

motions to vacate were forged and not signed by him. The Government’s objection will be 

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overruled. It is unclear whether the § 2255 motions were authorized by Petitioner. Petitioner claims 

that he did not authorize them, but he provides no evidence to substantiate such a claim. 

Accordingly, Judge Morris is correct when she stated that Petitioner may have placed his § 2255 

motion in the mail to Fait Accompli. The Government’s second objection will be overruled. 

IV. 

Petitioner has failed to make a substantial showing of the denial of a constitutional right, 

and a certificate of appealability is not warranted in this case. The Court further concludes that 

Petitioner should not be granted leave to proceed in forma pauperis on appeal, as any appeal would 

be frivolous. See Fed. R. App. P. 24(a). 

V. 

Accordingly, it is ORDERED that Petitioner’s objections, ECF No. 312, are 

OVERRULED. 

 It is further ORDERED that the Government’s objections, ECF No. 311, are 

SUSTAINED IN PART and OVERRULED IN PART. 

 It is further ORDERED that the Report and Recommendation, ECF No. 310, is 

ADOPTED IN PART and REJECTED IN PART. The only portion rejected is the representation 

that Petitioner’s sentence became final on October 2, 2018. Petitioner’s sentence became final on 

October 1, 2018. 

 It is further ORDERED that the two motions to vacate under § 2255 (ECF Nos. 295, 297) 

and Petitioner’s motion for leave to file an amended § 2255 motion (ECF No. 303) are DENIED. 

 It is further ORDERED that the Government’s motion to dismiss the motions to vacate 

(ECF No. 301) and the Government’s motion to strike Petitioner’s motion for leave to file an 

amended § 2255 motion (ECF No. 306) are GRANTED. 

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It is further ORDERED that a certificate of appealability is DENIED. 

It is further ORDERED that leave to proceed in forma pauperis on appeal is DENIED. 

Dated: July 30, 2020 s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney of record herein by electronic means Melvin 

Andrew Morris #50229-039, GILMER FEDERAL CORRECTIONAL 

INSTITUTION, Inmate Mail/Parcels, P.O. BOX 6000, GLENVILLE, 

WV 26351 by first class U.S. mail on July 30, 2020. 

 s/Kelly Winslow 

 KELLY WINSLOW, Case Manager 

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