United States District Court, S.D. Georgia, Statesboro Division
REPORT AND RECOMMENDATION
convicted for possession of a firearm as a felon, doc.
31(plea agreement), Manuel Hrneith was
sentenced to 70 months' imprisonment, a 13-month upward
variance from the applicable advisory imprisonment range
under the Sentencing Guidelines. See doc. 30
(judgment), doc. 37 (Sentencing Hearing transcript). He
appealed, arguing that the Court impermissibly relied on his
status as an illegal alien and prior escape from custody, as
well as his criminal history, to impose the upward departure
under 18 U.S.C. § 3553(a). Doc. 34. The Eleventh Circuit
affirmed his sentence, concluding that the district court did
not err in “disagree[ing] with the sentencing
guidelines” and imposing a heightened sentence to
reflect those factors. Doc. 44 (holding “that the
district court's sentence does not lie outside the range
of reasonable sentences dictated by the facts of this
case” and affirming sentence).
now moves under 28 U.S.C. § 2255 to correct his sentence
“to have his term of imprisonment reduced to the
guideline range” of 46-57 months' imprisonment --
in other words, he again seeks to void that contested 13
month upward variance. Doc. 52 at 1-2. He offers no real
argument that the sentence was erroneous; rather, he asks the
Court to resentence him by applying those same 18 U.S.C.
§ 3553(a) factors already employed by this Court (and
affirmed by the Court of Appeals). Id. at 2-3.
Preliminary § 2255 Rule 4 review shows that his motion
should be DENIED.
argument has already been introduced and rejected on appeal.
See doc. 44. He is thus foreclosed from raising it
again in this Court in a § 2255 motion. Stoufflet v.
United States, 757 F.3d 1236, 1239 (11th Cir. 2014)
(“It is long settled that a prisoner is procedurally
barred from raising arguments in a motion to vacate his
sentence, 28 U.S.C. § 2255, that he already raised and
that we rejected in his direct appeal.”); United
States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000)
(“Once a matter has been decided adversely to a
defendant on direct appeal it cannot be re-litigated in a
collateral attack under section 2255.”); Mills v.
United States, 36 F.3d 1052, 1056 (11th Cir. 1994)
(“[P]rior disposition of a ground of error on direct
appeal, in most cases, precludes further review in a
subsequent collateral proceeding.”); United States
v. Rowan, 663 F.2d 1034, 1035 (11th Cir. 1981)
(“This Court is not required on § 2255 motions to
reconsider claims of error raised and disposed of on direct
appeal.”). Put another way, the Court cannot consider
his argument regardless of whether Hrneith believes the
upward variance unfairly punitive.
Manuel Hrneith's § 2255 motion should be
DENIED as procedurally barred. Applying the
Certificate of Appealability (COA) standards set forth in
Brown v. United States, 2009 WL 307872 at * 1-2
(S.D. Ga. Feb. 9, 2009), the Court discerns no COA-worthy
issues at this stage of the litigation, so no COA should
issue either. 28 U.S.C. § 2253(c)(1); Rule 11(a) of the
Rules Governing Habeas Corpus Cases Under 28 U.S.C. §
2254 (“The district court must issue or deny a
certificate of appealability when it enters a final order
adverse to the applicant”) (emphasis added).
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
“Objections to Magistrate Judge's Report and
Recommendations.” Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 F. App'x 787, 790 (11th Cir.
2016); Mitchell v. U.S., 612 F. App'x 542, 545
(11th Cir. 2015).
REPORTED AND RECOMMENDED
 The Court is citing to the criminal
docket in CR611-023 unless otherwise noted, and all page
numbers are those imprinted by the Court's docketing
 Hrneith does not challenge that his
sentence is being properly executed (§ 2241 territory);
rather, he challenges the propriety of the sentence itself.
The Court thus reconstrued Hrneith's motion, titled as a
28 U.S.C. § 2241 petition, as a § 2255 motion to
correct his sentence and offered him the opportunity withdraw
or amend his motion accordingly. See doc. 2 (warning
movant of the effect of electing to proceed with his §
2255 motion, citing Castro v. United States, 540
U.S. 375, 383 (2003) (“the district court must notify
the pro se litigant that it intends to recharacterize the
pleading [as a § 2255 motion], warn the litigant that
this recharacterization means that any subsequent § 2255
motion will be subject to the restrictions on ‘second
or successive' motions, and provide the litigant an
opportunity to withdraw the motion or to amend it so that it
contains all the § 2255 claims he believes he
has.”)). Hrneith elected to “consent to the