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Hatcher v. United States

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

June 1, 2018

ROBERT LEE HATCHER, III, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

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

         This matter is before the Court on Magistrate Judge Justin S. Anand's Final Report and Recommendation [168] (“R&R”), recommending that Movant Robert Lee Hatcher III's (“Hatcher”) Petition for Writ of Habeas Corpus under 28 U.S.C. § 2255 [126] (“§ 2255 Motion”) be denied and that a certificate of appealability be denied. Also before the Court are Hatcher's Objections to the Magistrate Judge's Report and Recommendation [170] (“Objections”).[1]

         I. BACKGROUND

         A grand jury indicted Movant and three co-defendants and charged them with one count of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349, and fifteen counts of wire fraud in violation of 18 U.S.C. § 1343. The charged conduct involved a “ticket-switching” scheme conducted at Home Depot stores all over the country by which Movant and his codefendants would cover high priced UPC labels on merchandise with lower-priced UPC labels, purchase the items, return them at the higher price to get store credit with a refund balance, and sell those refund cards to others at a discount. ([11]). On July 18, 2014, while represented by Brian Mendelsohn, Movant entered into a guilty plea without a plea agreement to all sixteen charges [87]. On October 28, 2014, the Court sentenced him to a concurrent sixty months of imprisonment on each count plus restitution. ([110]).

         Movant filed a § 2255 motion in this Court on May 18, 2015, and raised the following claims: (1) his guilty plea was involuntary as a result of ineffective assistance of counsel; (2) counsel was ineffective for failing to challenge the loss amount at sentencing; and (3) he was denied meaningful appeal of his sentence because counsel refused to appeal his sentence after being requested to do so. ([126.1] at 3, 5). Because the record of this case did not conclusively demonstrate whether Movant's counsel failed to follow Movant's instruction to file an appeal or what, if any, communications occurred between Movant and his attorney, the Magistrate Judge believed it prudent to hold a limited evidentiary hearing as to these issues. ([141]; [168] at 2). The Magistrate Judge appointed counsel for Movant and subsequently granted his motion to expand the evidentiary hearing to include all three grounds for relief, and held an evidentiary hearing on April 13, 2016. ([146], [157]; [168] at 2). As relief, Movant seeks to withdraw his guilty plea, or in the alternative, vacate his sentence so that he can raise objections to the loss amount before being resentenced. ([162] at 30). Movant also asks that if the Court finds that Ground Three is the only viable issue, the Court vacate and reissue the judgment so that he may file a direct appeal. (Id.).

         On July 19, 2016, the Magistrate Judge issued his R&R, recommending that Hatcher's § 2255 Motion be denied with prejudice and that a certificate of appealability be denied. ([168] at 23-24). On August 2, 2016, Hatcher filed his Objections to the R&R. ([170]).

         II. DISCUSSION

         A. Legal Standard

         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 (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). The Court conducts a de novo review of the specific portions of the R&R to which Hatcher objects. The Court reviews the remainder of the R&R for plain error.

         De novo determination does not require the Court to rehear testimony in order to accept the Magistrate Judge's credibility determinations. See United States v. Raddatz, 447 U.S. 667, 674-76 (1980). The Supreme Court explained:

[28 U.S.C. § 636(b)(1)] calls for a de novo determination, not a de novo hearing. We find nothing in the legislative history of the statute to support the contention that the judge is required to rehear the contested testimony in order to carry out the statutory command to make the required “determination.”

Id. at 674. “[T]o construe § 636(b)(1) to require the district court to conduct a second hearing whenever either party objected to the magistrate's credibility findings would largely frustrate the plain objective of Congress to alleviate the increasing congestion of litigation in the district courts.” Id. at 676 n.3. A district court, however, generally “must rehear the disputed testimony before rejecting a magistrate judge's credibility determinations.” United States v. Dorvilus, 357 Fed App'x 239, 245, 2009 WL 4854131, 5 (11th Cir. 2009) (citing United States v. Cofield, 272 F.3d 1303, 1306 (11th Cir. 2001) (emphasis in original).

         B. The Strickland Standard in the Context of a Guilty Plea

To prevail on a claim of ineffective assistance, a defendant must establish two things: (1) “counsel's performance was deficient, ” meaning it “fell below an objective standard of reasonableness, ” and (2) “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To satisfy the deficient-performance prong, the defendant must show that counsel made errors so serious that he was not functioning as the counsel guaranteed by the Sixth Amendment. Id. at 687. The defendant must rebut the strong presumption that his counsel's conduct fell within the range of reasonable professional assistance. Id. at 689. A defendant may satisfy the prejudice prong by showing “a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

Connolly v. United States, 568 Fed. App'x. 770, 770-71 (11th Cir. 2014) (noting that “[w]hen a defendant pleads guilty relying upon his counsel's best professional judgment, he cannot later argue that his plea was due to coercion by counsel, ” and affirming summary dismissal of a § 2255 motion because appellant's “conclusory allegations of coercion by his attorney . . . failed to rebut the strong presumptions that [(1)] his attorney's advice fell within the range of reasonable ...


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