United States District Court, Northern District of Georgia, Atlanta Division
MOTION TO VACATE 28U.S.C. §2255.
ORDER ADOPTING MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION
ORINDA D. EVANS UNITED STATES DISTRICT JUDGE
The matter is before the Court on Movant's 28 U.S.C. § 2255 motion to vacate, as amended [191, 192]; Magistrate Judge Janet F. King's Final Report and Recommendation ("R&R"), which recommends denying the § 2255 motion and a certificate of appealability ("COA") ; and Movant's objections .
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). Absent objection, the district judge "may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge, " id., 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).
Movant was convicted of conspiracy to commit armed robbery, in violation of 18 U.S.C. § 1951(a), and using and carrying a firearm in relation to a crime of violence, in violation of 18 U.S.C. §§ 2, 924(c)(1)(A). (See R&R at 2, ECF No. 202.) Movant pleaded guilty to the conspiracy count, and he does not contest that he, Okevilibus Thornton, and Timothy and Troy Stephens jointly planned the robbery and that in October 2010 he and Thornton jointly participated in the robbery of a Loomis Armored Truck while it was stopped at the DeKalb Medical Center in Decatur, Georgia. (Id.) Movant, however, did contest the gun charge and proceeded to a bench trial on the § 924(c) count.
The trial evidence included testimony by Deborah Lane Goddard, driver of the armored truck; Theo J. Price, the armored truck messenger; Jacquelyn Taylor, production supervisor at the DeKalb Medical Center; Brenda Lencrerot, a food service hostess with the DeKalb Medical Center; Ephraim Lawson, Chef for the DeKalb Medical Center; Thornton, co-conspirator and Loomis employee; and Cynthia J. Myers, Federal Bureau of Investigations Special Agent. (See R&R at 6-7, 14-15.)
Taylor, production supervisor at the DeKalb Medical Center, testified that she realized a robbery was occurring when she saw a man with a gun in his hand banging on the door of the armored truck, that she thought it was the passenger's side, that she could not see his face, and that he was wearing a sweater with a hood. . . . On cross examination, counsel asked, "were you able to see the face of the person who was in your words banging on the door?" . . . Taylor confirmed that she could not.
(R&R at 15 (citations omitted).)
. . . Lencrerot, a food service hostess with the DeKalb Medical Center, who observed the robbery from a second story window, testified that it looked like the robber with dread locks was carrying a gun when he came out of the armored vehicle carrying money bags. . . . Lawson, Chef for the DeKalb Medical Center, who observed the robbery transpiring within several feet of where he was standing before he ran back inside the building, testified that he saw one of the robbers watching with a gun in his hand.
(R&R at 6 (citation omitted).) Both Lencrerot and Lawson testified that they could not see the face of the robber with the gun. (R&R at 15.)
. . . Goddard, driver of the armored truck, testified that she did not see either robber with a gun and that, after the robbery, Price, the truck messenger, came out of the building with his gun drawn and came to the door of the truck (but did not knock on the door of the truck). . . . Price testified that when he came out of the building, after the robbery, he had his gun drawn and went to the driver's side of the armored vehicle. ...
(R&R at 14 (citations omitted).)
Thornton, co-conspirator and Loomis employee, testified that he pleaded guilty to possessing a firearm during the commission of the robbery at issue; that Movant became involved in the planning approximately two weeks before the robbery; that he and Movant both possessed guns when they twice unsuccessfully attempted a robbery of the truck before the actual robbery; that he and Movant both possessed guns during the actual robbery; that he saw Movant holding his gun during the robbery; and that Movant was wearing his hair in dread locks on the day of the robbery.... Thornton testified that Loomis drivers and messengers are required to be armed while working and that he discussed with his co-conspirators, including Movant, the risk of being shot during the robbery.... Thornton admitted that he had not initially been truthful about the guns "[b]ecause I didn't want to get charged with no gun." ... On cross-examination, Thornton ...