United States District Court, W.D. Arkansas, Texarkana Division
MAGISTRATE JUDGE'S REPORT AND
BARRY A. BRYANT U.S. MAGISTRATE JUDGE.
is Samuel B. Garrison (“Garrison”) who is
proceeding pro se. On January 22, 2019, Garrison
filed a Motion under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence. ECF No. 73. After being directed
by the Court to respond, the Government filed a response to
this Motion. ECF No. 77.
Motion was referred for findings of fact, conclusions of law,
and recommendations for the disposition of the case. The
Court has reviewed the Motion and the response; and based
upon that review, the Court recommends this Motion be
March 7, 2012, Garrison was named in a four-count Indictment.
ECF No. 1. On March 18, 2012, Garrison appeared for
arraignment with counsel, Tonda Curry, and entered a plea of
not guilty to Counts 1-4. ECF No. 8. Thereafter, on March 18,
2013, Garrison appeared with counsel, Clifton Holmes and
Tonda Curry, before the Honorable U.S. District Judge Susan
O. Hickey for a and pled guilty to Count 3 of the Indictment,
aiding and abetting in distributing a mixture or substance
containing a detectable amount of cocaine. ECF Nos. 25-26.
October 29, 2013, Garrison appeared with counsel, Gregory A.
Waldron, for sentencing. ECF No. 41. After granting the
Government's 5K1.1 motion for downward departure due to
substantial assistance, Judge Hickey sentenced Garrison to
220 months in prison, 3 years of supervised release, and a
$100 special assessment. ECF No. 44.
January 29, 2015, Garrison filed his first pro se
Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody. ECF No. 48.
This first motion was denied as untimely on December 16,
2016. ECF Nos. 57 and 68. Garrison did not appeal this
also filed two motions for reduction of sentence while the
first § 2255 motion was pending. ECF Nos. 55 and 59.
These motions for reduction of sentence were denied. ECF Nos.
61-62. He appealed the denial, and on September 15, 2015, the
United States Court of Appeals for the Eighth Circuit
summarily affirmed. ECF No. 67-1.
now files his second Motion under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence. ECF No. 73. He raises
three (3) issues:
a. The First Step Act requires that he be resentenced;
b. The Court erred in sentencing by not making a finding of
the drug quantity attributable to him; and
c. The Court erred by sentencing Garrison based on factors
not found by a jury.
Court appointed counsel to represent Garrison on this second
Motion and invited a supplement if needed. Appointed counsel
responded and stated that no supplement would be beneficial
to Garrison. ECF No. 76. The Government has responded to the
Motion and asserts it is a successive motion filed without
permission from the appropriate court of Appeals. ECF No. 77.
Alternatively, the Government asserts Garrison is not
entitled to relief on the substance of his first claim.
Id. Further, the Government asserts Garrison is not
entitled to assert the second and third claims because of his