United States District Court, Northern District of Georgia, Atlanta Division
ORDER ADOPTING MAGISTRATE JUDGE’S FINAL REPORT AND RECOMMENDATION
AMY TOTENBERG UNITED STATES DISTRICT JUDGE
The matter is before the Court on Movant’s 28 U.S.C. § 2255 motion ; the Magistrate Judge’s Final Report and Recommendation , which recommends that the § 2255 motion be denied and that a certificate of appealability (“COA”) be denied; 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). “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) (quoting Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)) (internal quotation marks omitted). The District Judge must “give fresh consideration to those issues to which specific objection has been made by a party.” Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990) (citation and 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).
In February 2013, Movant pleaded guilty in this Court to conspiring to possess with intent to distribute heroin, cocaine, and methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(A)(i), (ii), and (viii) and 846 and 18 U.S.C. § 2. (See Plea Hr’g Tr ., ECF No. 432; R&R at 1, ECF No. 627.) As part of his guilty plea, Movant acknowledged that he was subject to a mandatory minimum ten-year sentence and waived the right to appeal or collaterally attack his conviction and sentence, with exceptions that do not apply here. (See R&R at 4, 9.) In exchange, the government agreed to dismiss the remaining counts against Movant,  to bring no further criminal charges against Movant related to the charge to which he was pleading guilty, and to recommend that Movant receive an acceptance-of-responsibility adjustment to his guidelines calculations. (See id. at 4.) The Court accepted Movant’s guilty plea and imposed a 120-month term of imprisonment. (See id. at 2, 10.) Movant appealed, and on March 24, 2014, the Eleventh Circuit Court of Appeals dismissed the appeal based on Movant’s waiver of his right to appeal. (See id.)
In this action, Movant presents two grounds for relief: (1) ineffective assistance of counsel for promising Movant that if he pleaded guilty he would receive a seventy-eight to eighty-four month sentence, thus failing to inform Movant of the true consequences of the plea agreement,  and (2) ineffective assistance of counsel for failing to move at sentencing for a downward departure under U.S.S.G. § 5C1.2. (Mot. to Vacate at 5-6, ECF No. 601.) In reply to the government’s response, Movant added that he also should have received a three-level reduction under U.S.S.G. § 3B1.2 as a minor participant. (Mov’t Reply 6, ECF No. 617.)
B. The Magistrate Judge’s Report and Recommendation
On Movant’s first ground for relief, the Magistrate Judge reviewed the plea proceedings and found (1) that this Court’s finding at the plea hearing – that Movant’s guilty plea was knowingly, voluntarily, and intelligently made, on the advice of competent counsel – carried strong weight and (2) that Movant’s only argument to show that counsel was ineffective was his assertion that counsel promised him that he would receive a seventy-eight to eighty-four month sentence if he pleaded guilty. (R&R at 4-5, 8.) The Magistrate Judge found that Movant’s assertion was “overwhelmingly contradicted not once, but multiple times by Movant’s prior representations to the Court.” (Id. at 8.) The Magistrate summarized Movant’s prior representations as follows.
Movant acknowledged in his plea agreement (1) that he was subject to a maximum prison term of life and a mandatory minimum term of ten years and that the Court may impose a sentence up to and including the maximum term, (2) that he had carefully reviewed the plea agreement with his counsel and voluntarily agreed to its terms, and (3) that no promises or inducements had been made to him that were not discussed in the plea agreement. At the plea hearing, under oath before the Court, Movant confirmed (1) that he understood the Court could impose the maximum punishment, (2) that no-one had induced him to plead guilty with any promises except those contained in the plea agreement, (3) that he fully understood the provisions of the plea agreement, and (4) that he understood that he was subject to a mandatory minimum sentence of ten years.
(Id. at 8-9.) Under Strickland,  the Magistrate Judge found that, on this record, Movant’s assertion was “insufficient to show either that counsel advised him that he would receive a seventy-eight to eighty-four month sentence if he pleaded guilty or that counsel was deficient.” (R&R at 9.) Additionally, the Magistrate Judge found as follows on prejudice.
Movant’s bare assertion that he would not have pleaded guilty to count one is insufficient to show prejudice. Movant provides no rationale for proceeding to trial on all four counts, exposing himself to the same and greater punishment as he was exposed to by pleading guilty, exposing himself to the possibility of further criminal charges, and losing the government’s recommendation that he receive an acceptance-of-responsibility adjustment to his guidelines calculations.
On the second ground for relief, the Magistrate Judge summarized (1) the facts on Movant’s waiver of the right to review (including the Court’s questions to Movant on the waiver at the plea hearing) and (2) the fact that counsel at sentencing had argued for a safety valve reduction under U.S.S.G. § 5C1.2. (R&R at 9-10.) The Magistrate Judge ...