Morgan v. USA, No. 3:2014cv03003 - Document 9 (D.S.D. 2014)
Court Description: 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)
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FILED UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA CENTRAL DNISION THOMAS O. MORGAN, Petitioner, vs. UNITED STATES OF AMERICA, Respondent. * * * * * * * * * CN 14-3003 MAY 082014 ~~ 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 2
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