United States District Court, N.D. Georgia, Atlanta Division
DERRICK A. BROWN, Movant,
UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Magistrate Judge Janet F.
King's Final Report and Recommendation  (“Final
R&R”), recommending denial of Movant Derrick A.
Brown's (“Movant”) Motion to Vacate, Set
Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255
 (“Motion to Vacate”).
April 11, 2006, Movant was indicted by a grand jury sitting
in the Northern District of Georgia on seven counts of bank
robbery by force or violence and six counts of possessing a
firearm in furtherance of a crime of violence. (See
generally Indictment ). On March 20, 2007, Movant
pled guilty to Counts Four and Six of the Indictment, which
charged violations of 18 U.S.C. § 924(c)(1)(A)(ii) for
possessing a firearm in furtherance of a crime of violence.
(; [41.1]). The remaining counts of the Indictment were
dismissed, and, by judgment entered on February 25, 2008, the
Court imposed a 384 month sentence. (; ). On February
29, 2008, Movant appealed, and, on August 18, 2008, the
Eleventh Circuit Court of Appeals affirmed the judgment
against him. (). The Eleventh Circuit's opinion
states that Movant challenged his guilty plea, but does not
show that he challenged his sentence. (Id.). On June
23, 2016, Movant, proceeding pro se, filed his
Motion to Vacate raising a collateral challenge to his
sentence under 28 U.S.C. § 2255. ().
April 25, 2017, the Magistrate Judge issued the Final
R&R, recommending Movant's Motion to Vacate be
denied. ( at 9). No. party filed objections to the Final
28 U.S.C. § 2255 Motion
28 U.S.C. § 2255, a federal prisoner may file a motion
to vacate his sentence “upon the ground[s] that the
sentence was imposed in violation of the Constitution or laws
of the United States,  that the court was without
jurisdiction to impose such sentence,  that the sentence
was in excess of the maximum authorized by law, or [that the
sentence] is otherwise subject to collateral attack.”
See 28 U.S.C. § 2255(a). Collateral relief,
however, is limited. It is well-settled that “to obtain
collateral relief, a prisoner must clear a significantly
higher hurdle than would exist on direct appeal.”
United States v. Frady, 456 U.S. 152, 166 (1982).
The movant bears the burden of persuasion, which “is
supposed to be a heavy one.” Rogers v. Zant,
13 F.3d 384, 386 (11th Cir. 1994).
decided on direct appeal cannot be re-litigated under §
2255, and matters that could have been raised on direct
appeal, but were not, are generally foreclosed. Hidalgo
v. United States, 138 Fed.Appx. 290, 291 (11th Cir. June
29, 2005) (citing Lynn v. United States, 365 F.3d
1225, 1234 (11th Cir. 2004). Thus, § 2255 relief
“is reserved for transgressions of constitutional
rights and for that narrow compass of other injury that could
not have been raised on direct appeal and would, if condoned,
result in a complete miscarriage of justice.”
Lynn, 365 F.3d at 1232 (quoting Richards v.
United States, 837 F.2d 965, 966 (11th Cir. 1988)
(internal quotation marks omitted). A constitutional claim of
ineffective assistance of counsel generally is properly
raised on collateral review to allow for adequate development
and presentation of relevant facts. Massaro v. United
States, 538 U.S. 500, 505-09 (2003). “An
evidentiary hearing is not required when ‘the motion
and the files and records of the case conclusively show that
the prisoner is entitled to no relief.'” Gordon
v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008)
(quoting § 2255).
Magistrate Judge's Report and Recommendation
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. See Garvey v.
Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993);
United States v. Slay, 714 F.2d 1093, 1095 (11th
Cir. 1983) (per curiam). Where, as here, no party filed
objections, the Court conducts a review for plain error.
The Motion to Vacate
claims that his predicate armed bank robbery offenses do not
qualify as crimes of violence under the use-of-force/elements
clause in § 924(c)(3)(A), or the residual clause in
§ 924(c)(3)(B), which he contends is void for vagueness
under Johnson v. United States, 135 S.Ct. 2551
(2015). ([82.1] at 2-13). Respondent argues that Movant's
claim is procedurally defaulted, that the Johnson
holding does not apply to § 924(c), and that, even ...