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Payne v. United States

United States District Court, N.D. Georgia, Atlanta Division

December 18, 2014

DWAYNE PAYNE, BOP ID XXXXX-XXX, Movant,
v.
UNITED STATES OF AMERICA, Respondent. Criminal Action No. 1:13-CR-294-2-SCJ

ORDER MOTION TO VACATE 28 U.S.C. § 2255

STEVE C. JONES, District Judge.

This matter is before the Court on federal inmate Dwayne Payne's Objections [81] to a Final Report and Recommendation (the "Final R&R") [78], recommending dismissal of his Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [77]. For the reasons that follow, the Final R&R will be adopted and approved as the order of this Court (as supplemented by this Order) and Payne's § 2255 Motion will be summarily dismissed.

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 F.Appx. 781, 784 (11th Cir. 2006).[1] 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, a 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)).

The Final R&R recited the history of Payne's conviction on a non-negotiated guilty plea to conspiring with Renaldo Robichaw to deal firearms without a license, in violation of 18 U.S.C. § 371. See [78 at 1]. The Final R&R explained why Payne's claims that (1) he was "innocen[t] of the crime charge[d]" because he could not "conspire with a Government Agent" and (2) this Court "lack[ed] subject matter jurisdiction because [he] never committed a crime, " [77 at 4-5], were unavailing, see [78 at 1-3]. The Final R&R therefore recommended that Payne's § 2255 Motion be summarily dismissed and that he be denied a Certificate of Appealability because he did not make the requisite showing. See [78 at 4].

In his Objections, Payne does not contest the Final R&R's observation that Robichaw can be considered his co-conspirator, but he now argues instead that the Final R&R did not address his claim that there was never an "overt act" taken in furtherance of the conspiracy. See [81 at 2]. Even considering this objection de novo, it is clear from the record that Payne "discuss[ed] with the undercover agent purchasing firearms, " see [72 at 3], an overt act adequate to support his conviction.[2]

In his Objections, Mr. Payne also complains that the Final R&R failed to apply Bousley v. United States, 523 U.S. 614 (1998). That case dealt with a collateral attack under § 2255 on a conviction based on the movant's claim that his "guilty plea was not knowing and intelligent because he was misinformed by the District Court as to the nature of the charged crime." Bousley, 523 U.S. at 616. Payne made no such claim in his § 2255 motion. See [77 at 4-5 (stating Grounds One and Two)]. Accordingly, this Court declines to consider this claim now that Payne is raising it for the first time in his Objections. See Williams, 557 F.3d at 1292.

After de novo review of the entire Final R&R, the Court OVERRULES Payne's Objections [81]. As supplemented by this decision, the Final R&R [78] is hereby APPROVED AND ADOPTED as the Order of this Court. Payne's § 2255 motion [77] is SUMMARILY DISMISSED. See 28 U.S.C. foll. § 2254, Rules 1(b) & 4. And Payne is DENIED a Certificate of Appealability.

SO ORDERED


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