United States District Court, N.D. Georgia, Atlanta Division
RICHARD W. STORY, District Judge.
This case is before the Court on petitioner Val Ealey's Objections  to the Final Report and Recommendation ("R&R") , which recommends that respondent's Motion to Dismiss  be GRANTED and that this Amended 28 U.S.C. § 2254 Petition  and a certificate of appealability be denied.
In reviewing a Magistrate Judge's Report and Recommendation, the district court "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). "Parties filing objections to a magistrate's report and recommendation must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be considered by the district court." United States v. Schultz , 565 F.3d 1353, 1361 (11th Cir. 2009) (per curiam) (quoting Marsden v. Moore , 847 F.2d 1536, 1548 (11th Cir. 1988)) (internal quotation marks omitted). Absent objection, the district judge "may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge, " 28 U.S.C. § 636(b)(1), and "need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation, " Fed.R.Civ.P. 72, advisory committee note, 1983 Addition, Subdivision (b). Further, "the district court has broad discretion in reviewing a magistrate judge's report and recommendation" - it "does not abuse its discretion by considering an argument that was not presented to the magistrate judge" and "has discretion to decline to consider a party's argument when that argument was not first presented to the magistrate judge." Williams v. McNeil , 557 F.3d 1287, 1290-92 (11th Cir. 2009).
A. Case Number 2008-CR-1875-5
On October 27, 2007, petitioner was stopped for speeding in Clayton County. (Resp't Ex. 5 pt. 1 [12-7], at 102-03; Resp't Ex. 6, pt. 2 [12-11], at 18.) The officer noticed an odor of marijuana coming from petitioner's vehicle. (Resp't Ex. 6, pt. 2 at 18.) Based on the odor, the officer searched the vehicle and found more than an ounce of marijuana and more than twenty-eight grams of cocaine. (Id.) Petitioner was charged in Clayton County case number 2008-CR-1875-5 with trafficking in cocaine, possession of marijuana, and speeding. (Resp't Ex. 5 pt. 1 at 102-03.)
Following a bench trial on April 21, 2009, petitioner was found guilty on all counts. (Resp't Ex. 5 pt. 1 at 145; Resp't Ex. 5 pt. 2 [12-8], at 32.) The court imposed a total sentence of ten years of imprisonment. (Resp't Ex. 5 pt. 2 at 33.) Thomas Moran represented petitioner at trial. (Resp't Ex. 5 pt. 1 at 145.)
Represented by new counsel, Jonathon J. Majeske, petitioner filed a direct appeal, arguing that his waiver of his right to a jury trial was involuntary. (Resp't Ex. 5 pt. 3 [12-9], at 4-13.) The Georgia Court of Appeals agreed and reversed petitioner's conviction, but concluded that he could be retried. Ealey v. State , 714 S.E.2d 424, 427-28 (Ga.Ct.App. 2011).
On November 29, 2011, represented by Mr. Majeske and Mark J. Issa, petitioner entered a negotiated guilty plea and again received a total sentence of ten years of imprisonment, concurrent with Clayton County case number 2009-CR-0163-5. (Resp't Ex. 6, pt. 2 at 14-24.) Petitioner did not pursue further direct review.
B. Case Number 2009-CR-0163-05
On October 29, 2007, officers from the Clayton County Narcotics Unit executed a search warrant on petitioner's residence. (Resp't Ex. 5 pt. 2 at 100.) Upon entry, the officers found approximately fifty pounds of marijuana, as well as some cocaine. (Id.; Resp't Ex. 2 [12-4], at 2.) Petitioner was charged in Clayton County case number 2009-CR-0163-5 with possession of controlled substances near a school, possession of cocaine, and trafficking in marijuana. (Resp't Ex. 5 pt. 3 at 1-2.)
On May 13, 2009, petitioner, represented by Mr. Moran, pleaded guilty to the trafficking in marijuana charge, and the remaining charges were nolle prossed. (Resp't Ex. 5 pt. 2 at 51, 99-105.) The court sentenced petitioner to seventeen years of imprisonment, concurrent with Clayton County case number 2008-CR-1875-5. (Id. at 108.) Petitioner did not file a direct appeal.
C. Post-Conviction Proceedings
On February 28, 2012, petitioner, still represented by Mr. Majeske, filed a habeas corpus petition in the Superior Court of Dooly County, challenging case number 2009-CR-0163-5. (Resp't Ex. 1a [12-1].) Petitioner later filed a pro se amendment. (Resp't Ex. 1b [12-2].) In that petition, as amended, petitioner raised the following seven grounds for relief: (1) Mr. Moran was ineffective for not properly moving to suppress the contraband found in petitioner's home on the ground that the affidavit supporting the search warrant was legally insufficient; (2) Mr. Moran was ineffective for not moving to quash the indictment on double jeopardy grounds; (3) Mr. Moran was ineffective for failing to challenge the insufficient chain of custody reports as to the marijuana evidence; (4) Mr. Moran was ineffective for not challenging the marijuana tests evaluations because they were fabricated; (5) the prosecutor and trial judge exceeded their jurisdiction in bringing a case against petitioner and entering judgment without evidence or subject ...