United States District Court, N.D. Georgia, Atlanta Division
D. EVANS UNITED STATES DISTRICT JUDGE
matter is currently before the Court on Albert Espinal's
objections [Doc. 397] to the Final Report and Recommendation
("R&R") issued by Magistrate Judge Russell G.
Vineyard [Doc. 395], which recommends that Espinal's 28
U.S.C. § 2255 motion, as amended, be denied. Espinal has
also filed a motion to compel the government to provide him a
copy of its response to Espinal's supporting memorandum
and his motion to amend and for an extension of time to file
a reply to that response. [Doc. 398]. Because the Court finds
that further briefing by Espinal is not necessary to resolve
the issues presented in this case, Espinal's motion [Doc.
398] is DENIED.
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) (per curiam) (quoting Marsden v.
Moore. 847 F.2d 1536, 1548 (11th Cir. 1988)) (internal
quotation marks omitted). Absent objection, the district
judge "may accept, reject, or modify, in whole or in
part, the findings or 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 m order to accept the recommendation, "
Fed.R.Civ.P. 72, advisory committee note, 1983 Addition,
Subdivision (b). Further, "the district court has broad
discretion in reviewing a magistrate judge's report and
recommendation" - it "does not abuse its discretion
by considering an argument that was not presented to the
magistrate judge" and has discretion to decline to
consider a party's argument when that argument was not
first presented to the magistrate judge." Williams v.
McNeil, 557 F.3d 1287, 1290-92 (11th Cir. 2009).
federal grand jury in the Northern District of Georgia
returned a twelve-count third superseding indictment against
Espinal and five co-defendants charging them with various
offenses following a series of violent robberies of drug
dealers. [Doc. 174]. Espinal pleaded not guilty and proceeded
to a thirteen-day jury trial. [Docs. 206; 208; 211-12;
216-18; 222-23; 225-29; 318-23; 325-29; 334]. The jury found
Espinal guilty on all counts [Doc. 236], and the Court
imposed a total sentence of 840 months of imprisonment [Doc.
273]. On January 5, 2015, the United States Court of Appeals
for the Eleventh Circuit affirmed Espinal's convictions
and sentence. United States V. Reyes, 596
F.App'x 800, 804 (11th Cir. 2015). On October 19, 2015,
the United States Supreme Court denied Espinal's petition
for a writ of certiorari. Espinal V. United States. 136 S.Ct.
timely filed this pro se § 2255 motion, arguing that he
received ineffective assistance of counsel at all stages of
the proceedings when counsel failed to: (1)(a) apprise him of
"the relevant circumstances and likely consequences of
pleading guilty as opposed to proceeding to trial";
(1)(b) "[c]onduct an adequate and independent pretrial
investigation" based on unspecified "leads"
that Espmal asked counsel to pursue; (1)(c) "[n]egotiate
a favorable plea agreementf; (2)(a) inform Espinal of trial
strategy, affirmative defenses, and theory of the defense;
(2)(b) allow Espinal to participate in his defense; (2)(c)
subpoena and call defense witnesses; (2)(d) properly
cross-examine government trial witnesses; (3)(a) review,
discuss, and explain the presentence report ("PSR")
to Espinal prior to sentencing; (3)(b) file substantive
objections to the PSR; (3)(c) submit mitigating evidence
during sentencing; (3)(d) object to Espinal's sentence on
substantive reasonableness grounds; (4)(a) communicate and
inform Espinal about his appeal issues; (4)(b) allow Espinal
to participate in his direct appeal; and (4)(c) raise
unidentified "stronger available issues" on appeal.
[Doc. 383 at 4-8, 12]. The government responds that all of
Espinal's grounds for relief lack merit. [Doc. 385 at
October 21, 2016, Espinal signed a supporting memorandum,
adding that counsel failed to: (1)(d) file substantive
pretrial motions; (1)(e) provide Espmal with the
government's discovery; (2)(e) obj ect to a hearsay
statement made by Ada Cordero and another statement made by
Gabriel Payamps; (2)(f) ask for a limiting instruction
regarding his co-defendants' guilty pleas; and (2)(g)
renew objections to the denial of a continuance. [Doc. 387 at
18-28, 33]. As to counsel's alleged ineffectiveness on
appeal, Espinal relies on the brevity of the Eleventh
Circuit's opinion and further asserts that counsel should
have argued that improper hearsay testimony was admitted at
trial. [Id. at 30-32]. Additionally, on October 19,
2016, Espinal signed a motion to amend his § 2255 motion
to add the following grounds for relief: (5) counsel was
ineffective for failing to object at trial and/or argue on
direct appeal that the Court's jury instruction on the
firearm offenses charged in Counts Eight and Twelve
constructively amended the indictment; and (6) counsel was
further ineffective for failing to argue on direct appeal
that the evidence at trial deviated from the facts contained
in the indictment as to Count Nine and thus, created a
variance. [Doc. 3 8 8J. The government responds that EspinaP
s new claims are both untimely and lack merit. [Doc. 394].
Magistrate Judge granted Espmal s motion to amend, but found
that the new claims presented in Espinal's supporting
memorandum, namely grounds (1)(d), (1)(e), (2)(e), (2)(f),
and (2)(g), were time barred. [Doc. 395 at 7]. The Magistrate
Judge then determined that all of Espinal s grounds for
relief, including his untimely claims, lacked merit. [IcL at
10-21]. Espinal states that he objects to the Magistrate
Judge's factual and legal findings as to his plea
negotiations, trial strategy, sentencing, and appeal claims
and that he also objects to the recommendation to deny him a
certificate of appealability. [Doc. 397]. Espinal, however,
presents no argument to support his objections.
[Id.]. This is precisely the type of conclusive[J or
general objections" that this Court need not consider.
Schultz, 565 F.3d at 1361.
careful consideration, the Court finds that the Magistrate
Judge s factual and legal conclusions were correct and that
Espmal s objections have no merit. Accordingly, the Court
ADOPTS the R&R [Doc. 395] as the opinion and order of the
Court, DENIES this § 2255 motion [Doc. 383], as amended
[Docs. 387-88], and ...