United States District Court, N.D. Georgia, Atlanta Division
TO VACATE 28 U.S.C. § 2255
MARTIN MAY UNITED STATES DISTRICT JUDGE.
matter is before the Court on Otis Shannon's objections
 to the Magistrate Judge's Final Report and
Recommendation ("R&R) , which recommends that
Shannon's 28 U.S.C. § 2255 motion  be denied.
In reviewing a Magistrate Judge's Report and
Recommendation, 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) (per
curiam) (quoting Marsden v. Moore, 847 F.2d 1536,
1548 (11th Cir. 1988)) (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).
Further, "the district court has broad discretion in
reviewing a magistrate judge's report and
recommendation" - it "does not abuse its discretion
by considering an argument that was not presented to the
magistrate judge" and "has discretion to decline to
consider a party's argument when that argument was not
first presented to the magistrate judge." Williams
v. McNeil, 557 F.3d 1287, 1290-92 (11th Cir. 2009).
by retained counsel Michael Katz and Thomas Mondelli, Shannon
entered a negotiated guilty plea to one count each of
conspiring to commit healthcare faud, in violation of 18
U.S.C. §§ 1347 and 1349, and conspiracy to commit
bribery, in violation of 18 U.S.C. § 371. (Docs. 99;
186.) The Court imposed a total sentence of thirty months of
imprisonment. (Doc. 174.)
timely filed this pro se § 2255 motion, arguing that:
(1) he received ineffective assistance of counsel because
Robert Giannini, the attorney who represented him during his
proffer sessions with the government before he was indicted,
"was not properly licenced to practice law at the
federal level"; (2) his subsequent counsel was
ineffective for failing to "present [his] mental health
issues and request [a competency hearing and] an independent
evaluation to determine whether ... [his] mental state
influenced [his] participation in the criminal activity"
or impaired his ability to understand the charges and plea
agreement, even though he made numerous requests that counsel
inform the Court that he "was under treatment fr Major
Depression/Bi-Polar Disorder Features Diagnosis" from
his arrest through sentencing; (3) there was no conspiracy
because some of the co-conspirators were dismissed from the
indictment; (4) counsel failed to argue that the Court erred
in determining the amount of loss attributable to him; (5)
counsel was also ineffective fr failing "to pursue [a]
defense of lack of intent and withdrawal from the
conspiracy"; (6) counsel further failed to argue that
the Drug Abuse Treatment Licence was not required to obtain a
Medicaid Provider License; and (7) counsel provided him
ineffective assistance at sentencing by failing to challenge
his sentencing enhancements for (a) leadership role and (b)
unauthorized use of identification. (Doc. 181 at 4-5, 7-8,
18-37.) The government responds, in pertinent part, that
ground (2) is not supported by the record and that
Shannon's remaining grounds also lack merit. (Doc. 187 at
10-13, 17-21.) The Magistrate Judge agreed, finding that all
of Shannon's grounds for relief lacked merit. (Doc. 190
objects to the Magistrate Judge's findings with respect
to grounds (2) and (7)(b). (Doc. 2.) As to ground (2), the
Magistrate Judge found that Shannon had not presented
evidence to show that (a) he suffered from major depression
or bipolar disorder at the time the crimes charged in this
case were committed or during his proffer sessions, plea
proceedings, or sentencing hearing, or (b) he was mentally
incompetent and did not understand the charges against him.
(Doc. 190 at 12.) The Magistrate Judge further determined
that Shannon's sworn statements during the plea colloquy
show that his prior issues with depression and mental illness
did not affect his ability to understand the nature of the
charges against him or his decision to plead guilty.
(Id. at 12-13.) The Magistrate Judge also found that
the Court was authorized to find Shannon competent to enter a
plea based on his remarks during the plea colloquy and that
Shannon had not rebutted the presumption that those
statements were true and correct. (Id. at 13-14.)
The Magistrate Judge then concluded that Shannon had not
shown deficient performance or prejudice as to this ground.
(Id. at 14-15.) Regarding ground (7)(b), the
Magistrate Judge found that Shannon could not show deficient
performance by counsel or prejudice for failing to challenge
the two-level enhancement for unauthorized use of
identification, as Shannon had agreed in his plea agreement
that the enhancement applied. (Id. at 18.) Nothing
in Shannon's objections convinces the Court that the
Magistrate Judge's thorough discussion of these issues is
conducted a careful review of the R&R and Shannon's
objections thereto, the Court finds that the Magistrate
Judge's factual and legal conclusions were correct and
that Shannon's objections have no merit. Therefore, the
Court ADOPTS the Magistrate Judge's Report and
Recommendation , DENIES Shannon's § 2255 motion
, and DECLINES to issue a certificate of appealability.
Clerk is DIRECTED to close the case.
The Court does not consider any
new claims that Shannon raises in his objections but did not
present to the Magistrate Judge. See Williams. 557
F.3d at 1291-92 ("[R]equiring the district court to
consider new arguments raised in the objections effectively
would eliminate ...