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Sterling v. United States

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

March 5, 2018

RONN STERLING, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          CHARLES A. PANNELL, JR. United States District Judge.

         This action is before the court on the magistrate judge's report and recommendation (“R&R”) [Doc. No. 277]. The movant has filed objections thereto [Doc. No. 282].

         I. Standard of Review

         In 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).

         II. Discussion

         A. Background

         The movant and his co-defendant Cornell Brumfield 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].

         The 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 562 months' imprisonment [Doc. No. 166].

         After 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 erred in conducting the trial in his absence and; and (2) evidence of prior convictions were improperly introduced at trial. Id. at 235-38.

         B. Section 2255 Motion

         The movant now collaterally challenges his convictions and sentences. He raises fifteen grounds for relief based on ineffective assistance of counsel, one ground for relief based on the cumulative effect of the ineffective assistance, and one ground for relief based on the court's authority to fashion a sentence consistent with the a defendant's characteristics and history.

         1. Ineffective Assistance of Counsel Claims

         Under 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).

         Under 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. ...


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