United States District Court, N.D. Georgia, Atlanta Division
To Vacate 28 U.S.C. § 2255
Timothy C. Batten, Sr. United States District Judge
matter is before the Court on Magistrate Judge John K.
Larkins, III's Final Report and Recommendation
(“R&R”) (Doc. 490) and Grant Allen's
objections thereto (Doc. 492).
reviewing a magistrate judge's R&R, 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). 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 in order to accept the recommendation.”
Fed.R.Civ.P. 72 advisory committee note to 1983 addition,
subdivision (b). In accordance with 28 U.S.C. §
636(b)(1) and Rule 72 of the Federal Rules of Civil
Procedure, the Court has conducted a de novo review
of those portions of the R&R to which Allen objects and
has reviewed the remainder of the R&R for plain error.
See United States v. Slay, 714 F.2d 1093, 1095 (11th
action, Allen challenges his 2011 convictions in this Court
for conspiracy to possess with the intent to distribute
cocaine, aiding and abetting in the attempt to possess with
the intent to distribute cocaine, aiding and abetting in the
possession of a firearm in furtherance of a drug trafficking
crime, and possession of a firearm by a convicted felon.
(Doc. 338). Allen was sentenced to life imprisonment and an
additional consecutive sixty-month term. (Id. at 2).
His convictions and sentence were affirmed on appeal.
15, 2015, Allen timely filed a motion to vacate. (Doc. 439).
He later filed a number of motions to amend. (Docs. 466, 472,
479, 488). Most of the motions to amend were addressed in
prior orders of the magistrate judge. (Docs. 470, 485). The
last motion to amend, filed August 26, 2016, was denied in
the R&R on the ground that it asserted untimely claims.
R&R, the magistrate judge also recommends that the motion
to vacate be denied. (Id.). Allen has objected to
the R&R. (Doc. 492). For the reasons set forth below,
Allen's objections are overruled.
The August 26, 2016 Motion to Amend Was Properly
initial objection is that his motion to amend, filed August
26, 2016, (Doc. 488), should not have been denied as untimely
because the motion was made “within one year of
‘the date on which the right asserted was initially
recognized by the Supreme Court.'” (Doc. 492 at 3).
In this motion to amend, Allen noted that he was
“moving the Court only for permission to amend and/or
supplement the record with the following facts which
clarifies [sic] the impact of Montgomery v.
Louisiana and its legal ramifications as they relate to
the instant case.” (Doc. 488 at 1). Allen then went on
to a lengthy discussion of the Supreme Court's holding in
A leyne v. United States, 133 S.Ct.
2151 (2013). He did not, however, explain how
Alleyne relates to any of the timely claims asserted
in his original motion to vacate.
holds that “[a]ny fact that, by law, increases the
penalty for a crime is an ‘element' that must be
submitted to the jury and found beyond a reasonable
doubt.” 133 S.Ct. at 2155. Allen first raised
Alleyne in a prior motion to amend filed February
22, 2016, for the proposition that his sentencing range
should have been zero to thirty years rather than life in
prison. (Doc. 472-1 at 7). Specifically, he argued
that the jury did not attribute a specific quantity of drugs
to him relevant to the charged offenses and therefore, the
mandatory minimum of life in prison should not have applied
to him. (Id.).
magistrate judge denied Allen's motion to add this claim,
noting that it was not timely and did not relate back to any
of Allen's timely filed claims. (Doc. 485 at 5). The time
for objecting to that Order has expired. See Fed. R.
Civ. P. 72(a) (“A party may serve and file objections
to [a nondispositive order] within 14 days after being served
with a copy. A party may not assign as error a defect in the
order not timely objected to.”).
does not now contend that Aleyne
bears on his timely filed claims. Rather, he argues that any
claim based on Aleyne is timely
because it was filed “within one year of ‘the
date on which the right asserted was initially recognized by
the Supreme Court.” (Doc. 492 at 3.). Alleyne
was decided on June 17, 2013. 133 S.Ct. 2151. Accordingly,
neither Allen's August ...