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") , as amended , and on the Final Report and Recommendation of United States Magistrate Judge Walter E. Johnson .
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).
The Court has reviewed the procedural history portion of the Final Report and Recommendation and the record in this action, and concludes that Judge Johnson correctly set forth the procedural history of this case. The Court therefore incorporates that portion of the Final Report and Recommendation into this Order as if set forth fully herein. (Final Report & Recommendation (Docket Entry No. 78) at 2-6.)
On March 26, 2015, Judge Johnson issued his Final Report and Recommendation. (Docket Entry No. 78.) Judge Johnson recommended that the Court deny Petitioner's § 2255 Motion, as amended. (id)
Petitioner has not filed Objections to the Final Report and Recommendation. (See generally Docket.) The time period in which Petitioner could file Objections has expired, and the Court therefore finds that the matter is ripe for resolution.
A. Grounds (1) and (5)(c): Validity of Plea
Petitioner argues that her guilty plea was involuntary because her trial counsel misinformed her concerning the criminal forfeiture of her real property and failed to explain the plea, the sentencing guidelines, and the mandatory minimum sentence. Judge Johnson correctly found that Petitioner's "challenges to the validity of her guilty plea based on ineffective assistance are not barred by her appeal waiver." (Final Report & Recommendation at 7.) Judge Johnson accurately set forth the law governing these claims. (\±Bt7-Q.) The Court agrees with Judge Johnson that:
[Petitioner's] assertions are belied by the record. During the plea hearing, [Petitioner] confirmed her understanding that her real property would be forfeited and affirmed that no one had promised her anything not included in the plea agreement or threatened her to plead guilty. [Petitioner] further asserted that she had read and discussed the plea agreement fully with her attorney. [Petitioner] acknowledged that she faced a ten-year mandatory minimum sentence, that she had agreed that 120 months of imprisonment was a reasonable sentence in this case, and that her sentence would include a term of supervised release of eight years to life. Furthermore, the Court explained that it would take into account the sentencing guidelines to determine whether the sentence the parties had agreed to was reasonable and then reviewed the sentencing recommendation at the government had agreed to in the plea agreement, which [Petitioner] maintained she had read and discussed with counsel. [Petitioner] then confirmed her understanding of the Court's explanation. [Petitioner] has not met her "heavy burden to show that [her] statements under oath were false, " and thus fails to show that counsel gave her incompetent advice.
(Id. at 8-9 (citations omitted) (last alteration in original).) Judge Johnson also correctly found that Petitioner "has not met her burden to show prejudice." (Id. at 9.) Specifically, "[Petitioner] has not alleged that she would have considered going to trial rather than pleading guilty had counsel's advice been different." (Id.)
In sum, the Court agrees with Judge Johnson that Petitioner failed to show that her attorney gave her incompetent advice or that any allegedly incompetent advice prejudiced her. Petitioner therefore is not entitled to relief on grounds (1) and (5)(c) of her § 2255 Motion, as amended, which contest the validity of her guilty ...