United States District Court, N.D. Georgia, Atlanta Division
TO VACATE 28 U.S.C. § 2255
D. EVANS, UNITED STATES DISTRICT JUDGE
matter is currently before the Court on Jose Reyes'
objection [Doc. 413] to the Final Report and Recommendation
("R&R") issued by Magistrate Judge Russell G.
Vineyard [Doc. 409], which recommends that grounds one,
three, and four of Reyes' 28 U.S.C. § 2255 motion
[Doc. 372] be denied. 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) (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 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). 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
Reyes, a.k.a. Tulile, and five co-defendants charging them
with various offenses following a series of violent robberies
of drug dealers. [Doc. 174]. Specifically, Reyes was charged
in Count One with conspiring to commit Hobbs Act robbery, in
violation of 18 U.S.C. § 1951 (a); in Count Nine with a
Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a);
in Count Ten with attempting to possess with intent to
distribute at least five kilograms of cocaine, in violation
of 21 U.S.C. § 841 (b)(1)(A); in Count Eleven with
possessing with intent to distribute at least 500 grams of
cocaine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B); and in Count Twelve with using and carrying a
firearm during and in relation to the offenses charged in
Counts Nine, Ten, and Eleven, in violation of 18 U.S.C.
§ 924(c)(1)(A)(iii). Id. Reyes pleaded not
guilty [Doc. 205] and proceeded to a jury trial represented
by court-appointed counsel Dennis C. O'Brien
("O'Brien"), [Docs. 17; 208; 211-12; 216-18;
222-23; 225-29; 318-23; 325-29; 334], The jury found Reyes
guilty on all counts. [Doc. 235]. The Court sentenced Ryes to
140 months of imprisonment on Counts One and Nine, to run
concurrently; 60 months on Count Ten, to run consecutively to
Counts One and Nine; 60 months on Count Eleven, to run
consecutively to Counts One, Nine, and Ten; and 120 months on
Count Twelve, to run consecutively to all other counts,
resulting in a total sentence of 380 months of imprisonment.
still represented by O'Brien, appealed, arguing that: (1)
the evidence was insufficient to prove the interstate
commerce element beyond a reasonable doubt; (2) the Court
erred in overruling Reyes' motion to suppress; (3) the
Court erred in overruling Reyes' motion for severance;
(4) the Court's jury instruction on the requisite
interstate commerce element was erroneous; (5) the Court
erred in overruling Reyes' motion to limit co-conspirator
Julia Sanchez's testimony; (6) the Court erred in
allowing Sanchez to incriminate Reyes with double hearsay;
(7) the Court erred in allowing into evidence numerous
instances of other crimes, wrongs, and acts as intrinsically
interwoven with the indicted conspiracy; (8) the Court erred
in overruling Reyes' motion for mistrial when testimony
of a crime outside the scope of conspiracy was allowed; and
(9) Reyes' within-the-guidelines sentence was
unreasonable. Br. of Appellant at 20-38 (Dec. 21, 2012),
United States v. Reves, 596 F.App'x 800 (11th
Cir. 2015) (No. 12-13417-DD). Reyes subsequently adopted the
following issues raised by his co-defendants: (10) the Court
constructively amended the essential elements of the
indictment; (11) the Court imposed a sentence impermissible
under Apprendi v. New Jersey. 530 U.S. 466 (2000);
(12) the government violated Reyes' statutory and
constitutional rights to a speedy trial; (13) the Court
failed to swear in the jury; (14) Reyes' sentence was
impermissible under Alleyne v. United States. 133
S.Ct. 2151 (2013); (15) the Court abused its discretion in
admitting evidence seized pursuant to an illegal arrest; (16)
the Court removed an essential element from the domain of the
jury and shifted the burden when it instructed the jury that
cocaine dealers were involved in interstate commerce; (17)
Reyes was deprived of his right to an impartial jury; (18)
the Court erred in admitting certain evidence; and (19) the
Court erred in instructing the jury regarding the intent
required for § 924(c) aiding and abetting violations.
Addendum to Br. of Appellant (Mar. 14, 2014), Reyes.
596 F.App'x 800. On January 5, 2015, the United States
Court of Appeals for the Eleventh Circuit affirmed Reyes'
convictions and sentence. Reyes. 596 F.App'x at
804. Reyes then petitioned for rehearing en banc, reasserting
the merits of his Alleyne claim. Pet. for
Reh'g(Jan. 26, 2015), Reyes. 596 F.App'x
800. The Eleventh Circuit summarily denied Reyes'
petition for rehearing. Order (June 16, 2015),
Reyes. 596 F.App'x 800. On October 19, 2015, the
United States Supreme Court denied Reyes' petition for a
writ of certiorari. Espinal v. United States. 136
S.Ct. 376 (2015).
timely filed this pro se § 2255 motion, arguing that
O'Brien was ineffective for failing to: (1) argue on
direct appeal that Reyes' § 924(c) conviction should
be vacated in light of Rosemond v. United States.
134 S.Ct. 1240 (2014), because Reyes "demonstrably
lacked knowledge of his co-defendants' guns during the
commission of the ... robbery" charged in Count Nine;
(2) raise a Johnson claim on direct appeal; (3) raise
the Alleyne decision on direct appeal before the
Eleventh Circuit's January 5, 2015, decision; and (4)
object to Reyes' 140-month sentence on Count One as
unreasonable because it was "far above" his
guideline range. [Doc. 372 at 16, 18-41]. The government
responds that all of Reyes' grounds for relief lack
merit. [Doc. 406 at 18-43].
Court referred this matter to the Magistrate Judge for
consideration of "all but the Johnson-based
claim, " i.e., ground two. [Doc. 407]. The Magistrate
Judge found that Reyes had failed to show deficient
performance by O'Brien or prejudice because
Rosemond had no effect on Reyes' § 924(c)
conviction for personally using and carrying a firearm during
the May 11, 2009, robbery charged in Count Nine; O'Brien
did present an Alleyne claim on direct appeal, which
the Eleventh Circuit summarily rejected; and Reyes'
140-month sentence on Count One was 95 months below the low
end of his guideline range and both this Court and the
Eleventh Circuit found the sentence reasonable. [Doc. 409 at
8-11]. Reyes objects only to the Magistrate Judge's
rejection of ground one, reasserting the merits of his
Rosemond claim. [Doc. 413].
careful consideration, the Court finds that the Magistrate
Judge's factual and legal conclusions were correct and
that Reyes' objections have no merit. Accordingly, the
Court ADOPTS the R&R [Doc. 409] as the opinion and order
of the Court and DENIES grounds one, three, and four of
Reyes' § 2255 motion [Doc. 372].
 Johnson v. United States. 135
S.Ct. 2551 (2015).
 To the extent that Reyes raises new
arguments with respect to this ground that he did not present
to the Magistrate Judge, the Court declines to consider them.
See Williams. 557 F.3d at 1291-92 ("[R]equiring
the district court to consider new arguments raised in the
objections effectively would ...