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Gordon v. Caldwell

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

February 6, 2018

BERTRAM GORDON, GDC ID # 1000454983, Petitioner,
v.
ANTONIO CALDWELL, Respondent.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Magistrate Judge J. Clay Fuller's Final Report and Recommendation (“R&R”) [17]. The R&R recommends the Court deny Petitioner Bertram Gordon's (“Petitioner”) 28 U.S.C. § 2254 habeas corpus petition [1] (“Section 2254 Petition”) challenging his December 2010 DeKalb County convictions for aggravated battery and possession of a firearm during the commission of a felony. Also before the Court are Petitioner's Objections to the R&R [21]; Motion to Amend Objections [22], and Amended Objections to the R&R [23] (“Amended Objections”).

         I. BACKGROUND

         Petitioner was indicted by the DeKalb County Grand Jury on August 10, 2009, for aggravated assault, possession of a firearm during the commission of a felony, and two counts of aggravated battery. Following a jury trial on December 17, 2010, Petitioner was found guilty of aggravated assault, possession of a firearm during the commission of a felony, and two counts of aggravated battery. Petitioner was sentenced to twenty five years in prison.

         The Court of Appeals of Georgia found the following evidence, viewed in the light most favorable to the guilty verdicts, sufficient to sustain them:

[T]he record shows that in early 2007, the victim, a cabdriver, frequently drove [Petitioner's] girlfriend to and from her workplace and her children's daycare center, and did so at times without pay. Although [Petitioner] and the victim were acquainted, [Petitioner] did not approve of the friendship between the victim and the girlfriend. On April 16, 2007, [he] called the victim and asked him where he was. The victim told [him] that he was at a Piccadilly restaurant. [Petitioner] borrowed his girlfriend's new Chevrolet, drove up to the victim's cab, where he was sitting with the door open, and fired at him three times, hitting him once in the left leg and once in the abdomen. Three spent rounds were found on the ground near the victim's cab.
An eyewitness saw the shooting, followed the Chevrolet, and called 911. While the eyewitness remained on the line with the 911 operator, police relayed the eyewitness's description of the car [that Petitioner] was driving to officers in the field. After a high-speed car chase ending in a crash at an apartment complex, [Petitioner] fled on foot and was apprehended by police. The victim recognized [Petitioner] at the scene and identified him from a photographic lineup and at trial.

Gordon v. State, 734 S.E.2d 777, 779 (Ga.Ct.App. 2012).

         On May 9, 2017, the Magistrate Judge issued the R&R recommending that the Petition be denied. ([17]). The Magistrate Judge considered Petitioner's claims regarding two grounds of ineffective assistance of appellate counsel and two grounds of ineffective assistance of trial counsel. Petitioner asserts that his appellate counsel failed to “prepare and perfect” the appeal regarding the inadequacy of trial counsel's preparation and pretrial investigation, and that his appellate counsel “allowed a tainted trial to proceed into petitioner's appeal” by failing to raise the issue of certain allegedly exculpatory phone records. The Magistrate Judge found no error in the state habeas court's conclusion that there was no reasonable probability that, absent the alleged failures of appellate counsel set forth in federal habeas grounds, the outcome of Petitioner's appeal would have been different.

         Regarding his ineffective assistance of trial counsel claims, Petitioner asserts that trial counsel failed to properly investigate his case and “failed to adversely contend [his] case.” The Magistrate held that “[b]ecause Petitioner had new counsel for his motion for new trial and on direct appeal, he was obligated to raise his claims of ineffective assistance of trial counsel in his motion for new trial to avoid the procedural default of these claims.” (R&R at 19). The Magistrate found that Petitioner failed to raise any basis to excuse the procedural default of his claims for ineffective assistance of trial counsel. (R&R at 19-20).

         On June 2, 2017, Petitioner filed his Objections to the Magistrate's R&R. ([21]). On June 5, 2017, Petitioner filed his Motion to Amend Objections. ([22]). On June 26, 2017, Petitioner filed his Amended Objections to the R&R. ([23]).

         In the Amended Objections, Petitioner repeats his four grounds of ineffective assistance of counsel with little reference to the R&R. Petitioner first objects that his appellate counsel “failed to perfect [his] appeal” by allegedly failing to raise on appeal trial counsel's allegedly deficient pre-trial investigation. Petitioner again asserts that his appellate counsel was ineffective for failing to raise the issue of phone records which Petitioner asserts disprove the victim's testimony that Petitioner had left threatening messages on the victim's phone. Petitioner repeats his third and fourth grounds regarding ineffective assistance of trial counsel, asserting that he “he has shown established cause for this procedural default in showing that his trial and appellate counsel was so inadequate that it violated his Sixth Amendment right to effective assistance of counsel.”

         II. DISCUSSION

         A. Standard of Review of a Magistrate Judge's R&R

         After 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, 732 (11th Cir. 1982) (per curiam). 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). Where no party has objected to the report and recommendation, the Court conducts only a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam). Because Petitioner generally objects to the Magistrate Judge's rejection of his ineffective assistance of appellate counsel claims and its finding that Petitioner failed to show cause excusing the procedural default of his ineffective assistance of trial counsel claims, the Court conducts its review of those findings and recommendations de novo. For those portions of the R&R to which an objection was not made, the Court reviews them for plain error. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983)

         B. Grounds Adjudicated on the Merits by the ...


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