United States District Court, Northern District of Georgia, Rome Division
This case is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence, which Petitioner filed under 28 U.S.C.A. § 2255 ("§ 2255 Motion") , on the Final Report and Recommendation of United States Magistrate Judge Walter E. Johnson , and on Petitioner's Objections to the Final Report and Recommendation .
I. Standard of Review for a Report and Recommendation
28 U.S.C. § 636(b)(1) requires that 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). The Court therefore must conduct a de novo review if a party files "a proper, specific objection" to a factual finding contained in the report and recommendation. Macort v. Prem. Inc.. 208 F.App'x 781, 784 (11th Cir. 2006); Jeffrey S. by Ernest S. v. State Bd. of Educ. 896 F.2d 507, 513 (11th Cir. 1990); United States v. Gaddy. 894 F.2d 1307, 1315 (11th Cir. 1990): LoConte v. Dugger. 847 F.2d 745, 750 (11th Cir. 1988). If no party files a timely objection to a factual finding in the report and recommendation, the Court reviews that finding for clear error. Macort. 208 F.App'x at 784. Legal conclusions, of course, are subject to de novo review even if no party specifically objects. United States v. Keel. 164 F.App'x 958, 961 (11th Cir. 2006); United States v. Warren. 687 F.2d 347, 347 (11th Cir. 1982).
On February 22, 2011, a federal grand jury sitting in the Northern District of Georgia returned an indictment against Petitioner. (Docket Entry No. 1.) The indictment charged Petitioner with attempting to entice a minor to engage in illegal sexual activity, in violation of 18 U.S.C. § 2422(b). (Id.)
Petitioner, represented by retained counsel, McNeill Stokes, proceeded to a two-day jury trial. (Trial Tr. Vol. I (Docket Entry No. 66); Trial Tr. Vol. II (Docket Entry No. 67).) The jury found Petitioner guilty. (Docket Entry No. 47.)
Petitioner retained new counsel, Bobby Lee Cook, C. Sutton Connelly, Donald F. Samuel, and Amanda R. Clark Palmer to represent him at sentencing. (Sentencing Tr. (Docket Entry No. 77).) Senior United States District Judge Robert L. Vining, Jr. sentenced Petitioner to 324 months of imprisonment. (Id at 46; Judgment & Commitment Order (Docket Entry No. 70).)
Represented by Attorneys Cook, Connelly, Samuel, and Palmer, Petitioner filed a direct appeal. (Docket Entry No. 71.) On February 14, 2013, the United States Court of Appeals for the Eleventh Circuit affirmed Petitioner's conviction and sentence. United States v. Anderson. 509 F.App'x 868 (11th Cir. 2013) (per curiam). The Eleventh Circuit summarized the evidence presented at trial as follows:
[Petitioner], through emails, phone calls, and a face-to-face meeting, arranged with an undercover law enforcement agent posing as a stepfather to two boys, ages 11 and 14, to have a sexual encounter with the two children at a Georgia hotel. [Petitioner] was arrested when he arrived at the hotel where the sexual contact was to take place, and he had brought with him pornographic films, an assortment of sex toys, condoms, and drugs that he had discussed administering to the children. He stated, in his post-arrest interview and at trial, that he would have gone through with the sexual encounter with the children. He also stated at trial that he was aware of the ages of the children he intended to meet at the hotel.
Id at 871.
On May 14, 2014, Petitioner, represented by retained counsel Stephen R. Scarborough, filed his § 2255 Motion. (Docket Entry No. 89.) Petitioner argues that: (1) his attorneys provided ineffective assistance by mishandling argument and evidence regarding Petitioner's HIV status during sentencing and on appeal; (2) his trial counsel provided ineffective assistance by failing to request a jury instruction on the defense of voluntary intoxication; (3) his trial counsel provided ineffective assistance by failing to argue United States v. Taylor. 640 F.3d 255 (7th Cir. 2011), as authority for a judgment of acquittal; (4) his trial counsel provided ineffective assistance by failing to argue that communication with an adult intermediary does not satisfy § 2422(b); (5) his appellate counsel provided ineffective assistance by failing to argue effectively against application of the grouping adjustment; and (6) his trial counsel provided ineffective assistance by failing to challenge the authenticity and completeness of the printouts of e-mail exchanges between the undercover agent and Petitioner or his partner. (§ 2255 Mot. at 4-5, 7-8; Suppl. (Docket Entry No. 89-6); Suppl. Br. § 2255 Mot. (Docket Entry No. 90) at 15-33.)
Judge Vining retired, and the Clerk assigned the case to the undersigned. (Unnumbered Docket Entry Dated Aug. 29, 2014.) On October 15, 2014, Judge Johnson issued his Final Report and Recommendation. (Docket Entry No. 97.) Judge Johnson recommended that the Court deny Petitioner's § 2255 Motion. (Id.)
Petitioner filed Objections to the Final Report and Recommendation. (Docket Entry No. 101.) The time period in which the Government could file a response to those Objections has expired, and the Court ...