United States District Court, N.D. Georgia, Atlanta Division
CHARLES A. PANNELL, JR., United States District Judge
action is before the court on the magistrate judge's
report and recommendation (“R&R”) [Doc. No.
275]. The movant has filed objections thereto [Doc. No. 283].
Standard of Review
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). The district judge must “give
fresh consideration to those issues to which specific
objection has been made by a party.” Jeffrey S. v.
State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir.
1990) (citation and 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).
movant and his co-defendant Ronn Darnell Sterling were
indicted for aiding and abetting one another pursuant to 18
U.S.C. § 2 in committing the substantive crimes of (1)
armed bank robbery in violation of 18 U.S.C. § 2113(a)
and (d); (2) possession of a firearm in relation to a crime
of violence in violation of 18 U.S.C. § 924(c)(1)(A) and
(c)(1)(C)(i); and (3) possession of a firearm by a convicted
felon in violation of 18 U.S.C. §§ 922(g)(1) &
924(a)(2). Superseding Indictment [Doc. No. 120].
pretrial proceedings, the movant sought to suppress evidence
recovered from a gray Dodge Stratus owned by the movant and
his wife. The motion was denied.
movant and his co-defendant were tried before a jury
beginning on January 17, 2012. On January 20, 2012, the jury
convicted both defendants on all counts [Doc. No. 147]. This
court sentenced the movant to 363 months' imprisonment
[Doc. No. 165].
the movant filed a timely notice of appeal, the Eleventh
Circuit affirmed the movant's and his co-defendant's
convictions and sentences by order dated November 21, 2013.
United States v. Sterling, 738 F.3d 228 (11th Cir.
2013). The Eleventh Circuit considered and rejected the
movant's arguments that (1) the trial court improperly
admitted evidence of the movant and his co-defendant's
prior convictions; and (2) there was a lack of sufficient
evidence to support all charges against the movant.
Id. at 238-39.
Section 2255 Motion
movant now collaterally challenges his convictions and
sentences on the following grounds: (1) trial counsel was
ineffective regarding the Fourth Amendment challenge to the
investigatory stop and search; (2) trial counsel was
ineffective in failing to object and seek suppression of
unsubstantiated criminal evidence; and (3) the movant is
actually innocent of all aiding and abetting counts.
Ineffective Assistance of Counsel Claims
the Sixth Amendment, a defendant has the right to
“reasonably effective” legal assistance.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
To show constitutionally ineffective assistance of counsel, a
petitioner must establish that (1) counsel's
representation was deficient and (2) counsel's deficient
representation prejudiced him. Id. at 690-92;
Bottoson v. Moore, 234 F.3d 526, 532 (11th Cir.
2000) (stating that the court may resolve an ineffective
assistance claim based on either prong).
the first prong, a movant must show that “in light of
all the circumstances, the identified acts or omissions were
outside the wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690.
“[C]ounsel's conduct is presumed reasonable, [and]
a petitioner must establish that no competent counsel would
have taken the action that his counsel did take.”
Chandler v. United States, 218 F.3d 1305, 1315 (11th
Cir. 2000) (en banc). To prove ineffectiveness, a movant must
show that his attorney's representation “fell
outside the wide range of professionally competent
assistance.” Id. at 1314 (internal quotation
marks omitted). When evaluating an attorney's
performance, the court must be highly deferential and
“avoid second-guessing counsel's
performance.” Id. Moreover, when reviewing
counsel's performance, the court “must evaluate the
reasonableness of counsel's performance from
counsel's perspective at the time, ” not with the
distortion of hindsight. Id. at 1316.
the second Strickland prong, a movant “must
show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466
U.S. at 694.