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Allen v. United States

United States District Court, N.D. Georgia, Atlanta Division

August 23, 2017

GRANT DECATUR ALLEN, Movant,
v.
UNITED STATES OF AMERICA, Respondent. Criminal Action No. 1:09-CR-320-5-TCB-JKL

         Motion To Vacate 28 U.S.C. § 2255

          ORDER

          Timothy C. Batten, Sr. United States District Judge

         This 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).

         In 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 Cir. 1983).

         I. BACKGROUND

         In this 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.

         On May 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. (Doc. 490).

         In the 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.

         II. DISCUSSION

         A. The August 26, 2016 Motion to Amend Was Properly Denied

         Allen's 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.

         Alleyne 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.[1] (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.[2] (Id.).

         The 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.”).

         Allen 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 ...


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