United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DIIFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Magistrate Judge Justin S.
Anand's Final Report and Recommendation 
(“R&R”), recommending that Movant Robert Lee
Hatcher III's (“Hatcher”) Petition for Writ
of Habeas Corpus under 28 U.S.C. § 2255 
(“§ 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 
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. (). On July 18, 2014, while
represented by Brian Mendelsohn, Movant entered into a guilty
plea without a plea agreement to all sixteen charges . On
October 28, 2014, the Court sentenced him to a concurrent
sixty months of imprisonment on each count plus restitution.
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. (;  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. (, ; 
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.
( 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.
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. ( at 23-24). On August 2, 2016, Hatcher filed
his Objections to the R&R. ().
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.
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
[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).
The Strickland Standard in the Context of a Guilty
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