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 Victor Hugo
Morales-Avila's objections [Doc. 415] to the Final Report
and Recommendation ("R&R") issued by Magistrate
Judge Russell G. Vineyard [Doc. 412], which recommends that
Morales-Avila's28U.S.C. § 2255 motion 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(1lth 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 nine count indictment against Morales-Avila and
five co-defendants, charging Morales-Avila in Count One with
conspiracy to distribute at least 500 grams of
methamphetamine and at least 5 kilograms of cocaine, in
violation of 21 U.S.C. §§ 846, 841(b)(1)(A)(viii),
and (b)(1)(A)(ii); in Count Two with possession with intent
to distribute cocaine, in violation of §§
841(a)(1), (b)(1)(C), and 18 U.S.C. §2; in Count Three
with possession with intent to distribute methamphetamine, in
violation of §§ 841(a)(1), (b)(1)(C), andl8 U.S.C.
§ 2; in Count Four with possession of a firearm in
furtherance of a drug-trafficking crime, in violation of 18
U.S.C. §§ 924(c)(1)(A)(i), (c)(1)(B)(i), and 2; in
Count Six with possession of a firearm by an illegal alien,
in violation of 18 U.S.C. §§ 922(g)(5), 924(a)(2);
in Count Seven with illegal reentry, in violation of 8 U.S.C.
§ 1326(a); and in Count Eight with possession of
counterfeit federal reserve notes, in violation of 18 U.S.C.
§ 472. [Doc. 49]. Represented by court appointed counsel
Rolf A. Jones, Morales-Avila entered a negotiated guilty plea
to Counts Two, Three, Four, Six, and Seven. [Docs. 34; 170-1;
290]. The Court sentenced Morales-Avila to fifty-two months
of imprisonment on each of Counts Two, Three, Six, and Seven,
to run concurrently, and sixty-months on Count Four, to run
consecutively to the fifty-two month sentence. [Doc. 203].
Although Morales-Avila filed a notice of appeal [Doc. 215],
he later filed a motion to dismiss the appeal voluntarily
with prejudice, which the United States Court of Appeals for
the Eleventh Circuit granted on December 17, 2013 [Doc. 295].
filed this pro se § 2255 motion on April 26, 2017,
arguing only that the Court erred in sentencing him in light
of the United States Supreme Court's April 3, 2017
decision in Dean v. United States, 137 S.Ct. 1170,
1178 (2017), which held that a sentencing court may consider
"a mandatory minimum under § 924(c) when
calculating an appropriate sentence for the predicate
offense." [Doc. 406]. The government responds that
Morales-Avila's ground for relief is barred by his valid
appeal waiver, procedurally defaulted because he did not
raise it on direct appeal, and fails because Dean is
not retroactively applicable to cases on collateral review.
[Doc. 408 at 3-14]. The Magistrate Judge found that
Morales-Avila's § 2255 motion should be denied for
all of the reasons asserted by the government. [Doc. 412].
objections, Morales-Avila reasserts the merits of his sole
ground for relief and newly argues that he was coerced into
pleading guilty, that he received ineffective assistance of
counsel, and that he is actually innocent. [Doc. 415].
Because Morales-Avila did not present these new claims 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 eliminate efficiencies gained
through the Magistrates Act. . . ."). Moreover, the
Court agrees with the Magistrate Judge that
Morales-Avila's sole ground for relief: (1) is barred
because the record reveals that he knowingly and voluntarily
waived his right to pursue any post-conviction relief; (2) is
procedurally defaulted because he did not complete a direct
appeal and any perceived futility in raising the
Dean claim on direct appeal does not constitute
cause to excuse the default merely because it may have been
unacceptable to the Eleventh Circuit at that particular time;
and (3) further fails because Dean is not
retroactively applicable to cases on collateral review.
careful consideration, the Court finds that the Magistrate
Judge's factual and legal conclusions were correct and
that Morales-Avila's objections have no merit.
Accordingly, the Court ADOPTS the R&R
[Doc. 412] as the opinion and order of the Court,
DENIES this § 2255 motion [Doc. 406],
and DECLINES to issue a certificate of
appeal ability. The Clerk is DIRECTED to
close this case.