United States District Court, S.D. Georgia, Savannah Division
that the evidentiary hearing in this matter (regarding the
simultaneousness or successiveness of movant's robbery by
intimidation predicate offenses) is approaching, several
matters must be dealt with immediately: (1) whether the
Government can present argument, for the first time, about
Jerry Green's South Carolina drug conviction; (2) whether
Green can raise an ineffective assistance of counsel claim at
this stage; and (3) what the Court may consider in evaluating
his robbery by intimidation convictions.
before the Court is the Government's supplemental
responsive briefing arguing, for the first time, that
movant's South Carolina drug conviction is an Armed
Career Criminal Act (ACCA) predicate offense. Doc.
In the Court's Report and Recommendation (R&R), the
undersigned determined that Green's conviction was a
“first offender” offense, and thus could not
qualify as an ACCA predicate.
Government did not object to that conclusion, and the R&R
was adopted in part by the District Judge. See doc.
77 at 18 (adopting the R&R to the extent it concluded the
South Carolina offense was not an ACCA predicate but
Green's armed robbery conviction was; declining to adopt
the R&R to the extent it found Green's robbery by
intimidation convictions counted as separate predicate
offenses under the ACCA and referring the matter back to the
Magistrate Judge for a further evidentiary hearing). The
Government now argues that the R&R got it wrong; that
Green's drug offense is indeed an ACCA predicate and it
has the evidence to back up that brand new argument. Doc. 82.
Green opposes, arguing that the Government waived any such
argument by failing to object to the factual and legal
conclusions of the R&R. Doc. 83. Green is right.
magistrate judge has issued a report and recommendation under
28 U.S.C. § 636(b)(1)(B), a party that wishes to
preserve its objection must clearly advise the district court
and pinpoint the specific findings with which it disagrees.
United States v. Schultz, 565 F.3d 1353, 1360 (11th
Cir. 2009). The failure to file an objection “waives
the right to challenge” the magistrate judge's
findings and legal conclusions (as adopted by the district
judge). 11th Cir. R. 3-1; see also 28 U.S.C. §
636(b)(1)(B); S.D. Ga. L. R. 72.3. Here, the Government
failed to raise its argument in its initial briefing or in
any objection to the R&R. It cannot now present, for the
first time, argument on an issue already explicitly
considered and decided by the District Judge and
conceded by the Government in its failure to object.
Doc. 73 at n. 4; doc. 77 at 18. The South Carolina conviction
doesn't count, and the undersigned is barred from
entertaining further argument as to whether it should.
before the Court is movant's motion for a subpoena to
call trial counsel before the Court for the evidentiary
hearing and for a copy of trial counsel's CJA voucher.
Doc. 84. The district judge, in adopting in part and
declining to adopt in part the R&R, left “for the
Magistrate Judge to decide in the first instance whether
[Green] should be permitted to recast his petition as
alleging ineffective assistance based on counsel's
failure to object to the [Presentence Investigative Report]
at sentencing, ” thus surmounting the procedural bar to
his simultaneous/successive offenses argument. Doc. 77 at 18.
such a claim could significantly impact the Court's prior
ruling on the merits of the motion, the Court invites counsel
to brief the following: (1) whether movant can bring an
ineffective assistance claim at this stage, and if so, (2)
how trial counsel was ineffective. Movant is thus ORDERED to
file a supplemental brief alleging a claim for ineffective
assistance of counsel, if any, by no later than August 18,
2017. The Government is ORDERED to file its opposition, if
any, by no later than September 8, 2017. The evidentiary
hearing is CONTINUED to September 28, 2017 at 9:00 a.m.
the district judge has directed the undersigned to hold an
evidentiary hearing to further suss out whether movant's
“two Georgia convictions for robbery by intimidation
count as separate predicate offenses under the ACCA.”
Doc. 77 at 18. The Shepard documents provided are a
mess: there are multiple clerical errors, misstatements, and
contradictions within these documents. Meanwhile, a
non-Shepard approved document (the arrest warrant)
appears fairly conclusive on the point that the crimes
occurred simultaneously. See doc. 73 at 6-13; 77 at
2-15. The parties are further directed to brief the Court on
whether (1) the Shepard documents actually
demonstrate that movant's robbery by intimidation
convictions are successive, rather than simultaneous,
offenses and (2) the Court may consider any
non-Shepard documents in determining the temporal
nature of Green's predicate offenses. The briefing
schedule set forth above will apply.
 The Court is citing to the criminal
docket in CR405-139, and all page numbers are those imprinted
by its CM/ECF docketing software.
 The ACCA provides enhanced penalties
for defendants who are (1) convicted of being felons in
possession of firearms in violation of 18 U.S.C. §
922(g), and (2) have “three prior convictions . . . for
a violent felony or a serious drug offense, or both.”
18 U.S.C. § 924(e)(1). Only those state drug offenses
“for which a maximum term of imprisonment of
ten years or more is prescribed by law”
qualify as “serious drug offense[s].” 18 U.S.C.
§ 924(e)(2)(A)(ii) (emphasis added). S.C.C.A. §
44-53-370(b)(2) provides that a person convicted of
possession with intent to distribute marijuana, a Schedule I
controlled substance, or cocaine, a Schedule II controlled
substance, “is guilty of a felony and upon conviction,
for a first offense must be imprisoned not more than five
years or fined not more than five thousand dollars, or
both.” Thus, a first-time conviction for possession
could not qualify as an ACCA predicate. It was unclear from
the sparse record -- the Government presented no argument or
Shepard documents in its initial briefing -- whether
Green's prior conviction for possession of cocaine in
violation of O.C.G. A. § 16-13-30(j) disqualified him
from “first offender” status. Absent that
information, the Court could not rely upon his South Carolina