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Morrison v. United States

United States District Court, N.D. Texas, Fort Worth Division

February 20, 2018

JACQUELINE MORRISON, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          John McBryde Judge.

         Came on for consideration the motion of Jacqueline Morrison ("movant") under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. After having considered such motion, its supporting memorandum, the government's response, movant's reply, and pertinent parts of the record in Case No. 4:14-CR-O69-A, styled "United States of America v. Gladstone Morrison, et al., " the court has concluded that the motion should be denied.

         I. Background

         Information contained in the record of the underlying criminal case discloses the following:

On September 4, 2014, movant and her husband, Gladstone Morrison, were named in a twenty-count second superseding indictment. CR Doc.[1] 57. She was charged in count 1 with conspiracy to aid and assist in preparation and presentation of false and fraudulent tax returns, in violation of 18 U.S.C. § 371; in counts 2-14 with aiding and assisting in the preparation and presentation of a false and fraudulent return, in violation of 26 U.S.C. § 7206(2); and, in counts 15, 17-18 with wire fraud, in violation of 18 U.S.C. § 1343. Id.

         The case was tried to a jury, which returned its verdict on October 23, 2014, finding movant guilty as to all counts. CR Doc. 144. The court sentenced movant to terms of imprisonment of 11 months as to each of the counts, to run consecutively to each other, for a total aggregate sentence of imprisonment of 187 months. CR Doc. 2 52. Movant was ordered to pay restitution in the amount of $17, 807, 106.00. Id. Movant appealed and the judgment was affirmed. United States v. Morrison, 833 F.3d 491 (5th Cir. 2016).

         On November 6, 2017, movant filed her motion under § 2255 along with a sixty-page memorandum. Docs.[2] 1 & 2. By lengthy order signed November 17, 2107, the court ordered that movant's memorandum be stricken from the record and gave her an opportunity to file a revised supporting memorandum not to exceed twenty-five pages in length. The order explained why movant had apparently misunderstood the purpose of a motion under § 2255 and urged her to focus on grounds she thought would have some prospect of success in filing her revised memorandum. And, the order directed that movant "clearly designate in such document by appropriate headings the part or parts of the document that are intended to be in support of each ground of her [motion] that she wishes to continue to urge." Doc. 8. On December 18, 2017, movant filed an amended memorandum, improperly purporting to incorporate by reference the amended memorandum filed by her husband under Case No. 4:17-CV-898-A to get around the page limitation. Doc. 11. The court ordered the amended memorandum stricken and granted movant one final opportunity to file a proper memorandum. Doc. 15. On January 5, 2018, movant filed her revised memorandum. Doc. 17. Thereafter, on January 23, 2018, movant filed an amended memorandum, purporting to completely change the grounds she was pursuing. Doc. 18. The Court ordered the amended memorandum stricken from the record and instructed that the government should proceed in preparation of its response to the motion and revised memorandum. Doc. 20.

         On January 31, 2018, the government filed its response to movant's motion, addressing each of the grounds supported by the revised memorandum.[3] Doc. 22, And, on February 16, 2018, the clerk filed movant's reply. Doc. 24.

         II. Grounds of the Motion

         Movant sets forth nine grounds in her motion, worded as follows:

GROUND ONE: Denial of effective assistance of counsel, when [movant was] not present in the courtroom during crucial period of the trial proceedings.

Doc. 1 at 5.

GROUND TWO: The jury failed to make a factual finding as to the elements of the offense in which punishment was rendered by the court.

Id. at 6.

GROUND THREE: [Movant was] denied effective assistance of counsel when the statute of limitation on the alleged offense as charged in the second superseding indictment had expired.

Id. at 8.

GROUND FOUR: Counsel(s) were constitutionally ineffective for failing to file for dismissal of the charges based upon prosecutor misconduct: scanning and copying of the defense work product.

Id. at 9.

GROUND FIVE: [Movant was] denied effective assistance of counsel when a restitution order was issued as a ...

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