United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Magistrate Judge Justin S.
Anand's Final Report and Recommendation 
(“Final R&R”), recommending that Petitioner
DeNorris Turner's (“Petitioner”) Petition for
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 
(“Section 2254 Petition”) be denied, that this
action be dismissed, and that a certificate of appealability
August 22, 2017, Petitioner filed his Section 2254 Petition,
challenging his 2014 aggravated assault conviction after
entering his guilty plea to the charge in DeKalb County state
court. Petitioner raises one ground for relief in his federal
habeas petition. He claims guilty plea was unlawfully induced
and involuntary because of the ineffective assistance of his
counsel resulting in Petitioner not understanding the charges
against him or the penalties that could result from his plea.
( at 5-6). On March 10, 2017, the Magistrate Judge issued
his Final R&R recommending that Petitioner's federal
habeas petition be denied because Plaintiff's state court
habeas petition was decided on the merits and (1) there is no
basis to show the decision was contrary to, or involved an
unreasonable application of, clearly established Federal law
or (2) the habeas court's decision was based on an
unreasonable determination of the facts. Plaintiff did not
file objections to the Final R&R.
conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or
modify a magistrate judge's report and recommendation. 28
U.S.C. § 636(b)(1); Williams v. Wainwright, 681
F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S.
1112 (1983). A district judge “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). With
respect to those findings and recommendations to which
objections have not been asserted, the Court must conduct a
plain error review of the record. United States v.
Slay, 714 F.2d 1093, 1095 (11th Cir. 1983), cert.
denied, 464 U.S. 1050 (1984).
Petitioner's Section 2254 Petition
January 5, 2017, Petitioner's state habeas petition was
denied on the merits by the Superior Court of DeKalb County.
([13.2] at 2-3, 6-7, 9). Petitioner now moves in his Section
2254 Petition in this Court to vacate his conviction based on
the grounds that his conviction was unlawfully induced and
involuntary, because of the ineffective assistance of his
counsel. ( at 5-6). A federal court may not grant habeas
corpus relief for claims previously decided on the merits by
a state court unless the decision (1) “was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States, ” or (2) “was based on an
unreasonable determination of the facts in light of the
evidence presented in the State Court proceeding.” 28
U.S.C. § 2254(d). A state court's determination of a
factual issue is presumed correct unless the petitioner
rebuts the presumption “by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1).
Magistrate Judge found that it could “discern no
basis to find that the state habeas court's conclusion
that Petitioner's plea was knowing and voluntary, as
summarily affirmed by the Supreme Court of Georgia, was
‘so lacking in justification that there was an error
well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” ( at 6-7;
quoting Harrington v. Richter, 562 U.S. 86, 103
(2011)). The Magistrate Judge further concluded that the
state habeas court's order and the transcript of
Petitioner's plea hearing “clearly show that
Petitioner understood the charges against him and the
consequences of his guilty plea, and that after consultation
with his attorney, without coercion or duress, he chose
voluntarily to plead guilty.” ( at 7-8).
The Court finds no plain error in this finding.
Certificate of Appealability
federal habeas “applicant cannot take an appeal unless
a circuit justice or a circuit or district judge issues a
certificate of appealability under 28 U.S.C. §
2253(c).” Fed. R. App. P. 22(b)(1). “The district
court must issue or deny a certificate of appealability when
it enters a final order adverse to the applicant.”
Rules Governing Section 2254 Cases in the United States
District Courts, Rule 11(a). A court may issue a certificate
of appealability “only if the applicant has made a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). A substantial
showing of the denial of a constitutional right
“includes showing that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484
When the district court denies a habeas petition on
procedural grounds . . ., a [certificate of appealability]
should issue when the prisoner shows, at least, that jurists
of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right and
that jurists of reason would ...