United States District Court, N.D. Georgia, Atlanta Division
TIEN HO, BOP No. 57631-019, Movant,
UNITED STATES OF AMERICA, Respondent. Criminal Action No. 1:05-cr-543-12-JEC-ECS.
JULIE E. CARNES, Chief District Judge.
This matter is before the Court on (1) Movant Tien Ho's "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody" , (2) Magistrate Judge E. Clayton Scofield III's "Final Report and Recommendation, " recommending denial of that motion ("Final R&R") , (3) Movant's "Traverse Response" , (4) Movant's "Motion to Compel Action" , and (5) Movant's "Emergency Request for the Court's Fair Discretion to Expedite the Adjudication" . For the following reasons, Movant's § 2255 motion and other motions will be denied.
A district judge has a duty to conduct a "careful and complete" review of a magistrate judge's Final R&R. Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982)(internal quotation marks and citation omitted). Those portions of the Final R&R that are not objected to need only be reviewed for clear error. Macort v. Prem, Inc., 208 Fed.App'x 781, 784 (11th Cir. 2006). Where objections are made, a district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made, " 28 U.S.C. § 636(b)(1)(C), and "give fresh consideration to those issues to which specific objection has been made, " Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990). However, the district judge has discretion to decline to consider arguments that were not raised before the magistrate judge. Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009). Indeed, a contrary rule "would effectively nullify the magistrate judge's consideration of the matter and would not help to relieve the workload of the district court." Id. (quoting United States v. Howell, 231 F.3d 615, 622 (9th Cir. 2000)).
In his "Traverse Response, " Movant has raised only one objection to the Final R&R. Movant contends that the Final R&R erred in concluding that his counsel provided effective assistance at sentencing by adopting a co-defendant's motion with respect to the (in)applicability of a sentencing enhancement under United States Sentencing Guideline §2D1.1(b)(1). ( See  at passim. ) In his § 2255 motion, Movant argued that his counsel "failed to object to and contest application of the firearm enhancement" at all. ( See  at 4; id. at 19 (same), 21 (same), 31 (same).) The Final R&R noted that, in fact, Movant's counsel did object to the application for the enhancement. ( See  at 4-5.) Now, Movant argues that "[o]bviously, there is a difference between a deposited motion challenging enhancement of the sentence and the request for the court to adopt the arguments of a codefendant's motion, that was litigated by another attorney." ( See  at 2.) This is an argument that Movant did not present to Magistrate Judge Scofield and that this Court need not consider. See Williams v. McNeil, 557 F.3d at 1292.
Furthermore, Movant has not objected to the Final R&R's conclusion that his § 2255 motion is barred by an enforceable collateral attack waiver in his Plea Agreement. ( See  at 2-3.) Because Movant did not object to that conclusion, it need only be reviewed for clear error, and the Court finds none.
Accordingly, Movant's objection is OVERRULED, and the Final R&R is hereby APPROVED and ADOPTED as the Order of the Court. For the reasons set forth in the Final R&R, Movant is DENIED a Certificate of Appealability.
And, because this Order disposes of Movant's § 2255 motion , his "Motion to Compel Action"  and "Emergency Request for the Court's Fair Discretion to ...