United States District Court, N.D. Georgia, Atlanta Division
TO VACATE 28 U.S.C. § 2255
H. COHEN UNITED STATES DISTRICT JUDGE
matter is before the Court on the Magistrate Judge's
Final Report and Recommendation ("R&R") [Doc.
48]1 that Movant's 28 U.S.C. § 2255 Motion
("Mot. to Vacate") [Doc. 40], Motion for Due
Process on 28 U.S.C. § 2255 Habeas Corpus Petition
("Mot. fr Due Process") [Doc. 47], and
Memorandum/Motion of Law Requesting to Supplement This
Foregoing Brief to 28 U.S.C. 2255 Petition ("Mot. to
Suppl.") [Doc. 43], be denied. The Order fr Service of
the R&R [Doc. 49] provided notice that, in accordance
with 28 U.S.C. § 636(b)(1), the parties were authorized
to file objections within furteen (14) days of the receipt of
that 1 All citations to the record are to case number
1:14-CR-297-MHC. Order. Movant filed his objections to the
R&R on January 9, 2017. Objs. to R&R [Doc. 50].
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)(C). "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). 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. Crv. P. 72(b), advisory committee's note to 1983
amendment. In accordance with 28 U.S.C. § 636(b)(1) and
Rule 72 of the Federal Rules of Civil Procedure, the Court
has conducted a de nova review of those portions of
the R&R to which Movant objects and has reviewed the
remainder of the R&R for plain error. See United
States v. Slav. 714 F.2d 1093, 1095 (11th Cir. 1983).
action, Movant attempts to challenge his sentence for
possession of methamphetamine with the intent to distribute,
pursuant to a guilty plea and negotiated plea agreement. At
sentencing, the Court denied Movant's request fr a
reduction based on his minor role in the drug conspiracy,
sustained his objection to a two-level enhancement for
maintaining premises for the purpose of distributing drugs,
applied a two-level enhancement for possession of a firearm
in connection with a drug trafficking crime, and applied a
two-level reduction under the Guidelines' safety valve
provision. Tr. of Sentencing Hr'g [Doc. 24] at 4-11, 21.
The Court found that Movant's total offense level was 35
and his criminal history category was I. Id. at 22.
The Court found that his guideline rage was 168 to 210 months
and sentenced him to 168 months. Id. at 22, 34; see
also J. in a Criminal Case [Doc. 12].
appealed his sentence to the United States Court of Appeals
fr the Eleventh Circuit, contending that the Court erred when
it refused to apply a minor role reduction in calculating the
Guidelines range. Notice of Appeal [Doc. 14]; United
States v. McDonal-Alejo. 626 Fed.Appx. 889 (11th
Cir. 2015). The court affirmed the sentence. Id.
Movant filed motions to reduce his sentence under 18 U.S.C.
§ 3582(c)(2) [Docs. 26, 35], which were denied by the
Court. Oct. 28, 2016, Order [Doc. 45].
R&R recommends that the Motion to Vacate and the Motion
for Due Process be denied because (1) Movant's claim
regarding the minor role reduction was decided against him on
appeal, and (2) Movant procedurally defaulted on his
remaining claims by not raising them on appeal even though
they were available to him at the time, and he has not shown
cause and prejudice for failing to do so. R&R at 5.
Movant's Motion to Supplement requested a sentence
reduction because of the retroactive application of Amendment
794. Mot. to Suppl. at 2. The R&R further recommends that
the Motion to Supplement be denied because a request to
reduce a sentence pursuant to a retroactive Guidelines
amendment must be made by motion under 18 U.S.C. §
3582(c)(2), not by motion under § 2255, and, to the
extent that the Motion to Supplement is based on the denial
of a minor role reduction, the claim is barred because it was
rejected on direct appeal. Id at 6.
his objections are difficult to understand, it appears that
Movant objects to the finding of the Magistrate Judge that he
should have made his motion under 18 U.S.C. §
3582(c)(2), not by motion under § 2255, but that he
would have been barred from doing so because he had already
filed a 18 U.S.C. § 3582(c)(2) motion on direct appeal.
Objs. to R&R at 2. Simply because other avenues for
appeal are foreclosed does not mean that a claim under §
2255 is appropriate.
"Section 2255 does not provide a remedy for every
alleged error in conviction and sentencing." Spencer
v. United States. 773 F.3d 1132, 1138 (11th
Cir. 2014) (en bane), cert. denied, 135 S.Ct. 2836 (2015).
Consequently, this Court lacks the authority to review a
claim brought in a § 2255 motion "unless the
claimed error constitute[s] 'a fundamental defect which
inherently results in a complete miscarriage of
justice."' United States v. Addonizio, 442
U.S. 178, 185 (1979) (quoting Hill v. United States,
368 U.S. 424, 428 (1962)). "A misapplication of advisory
sentencing guidelines" falls short of this standard
because it "does not violate an 'ancient' right,
nor does it raise constitutional concerns."
Spencer, 773 F.3d at 1140. Rather, "[a]
prisoner may challenge a sentencing error as a
'fundamental defect' on collateral review [only] when
[s]he can prove that [s]he is either actually innocent of
[her] crime or that a prior conviction used to enhance [her]
sentence has been vacated." Id. at 1139.
Because Ms. Bejar alleges neither of these things, her
sentencing error claim cannot be brought under § 2255.
Beiar v. United States. No. 1:09-CR-454-3-CAP-CMS,
2016 WL 5019196, at* 1 (N.D.Ga. Aug. 25, 2016),
report and recommendation adopted. No.
1:09-CR-454- 3-CAP, 2016 WL 4945345 (N.D.Ga. Sept. 16, 2016),
certificate of appealability denied. No.
16-16321-B, 2017 WL 4954804 (11th Cir. Mar. 10, 2017)
(requesting a sentence reduction because of the retroactive
application of Amendment 794). Movant's objections are,
no plain error in the remainder of the R&R, the Court
OVERRULES Movant's Objections [Doc. 50] and ADOPTS the
Magistrate Judge's Final Report and Recommendation [Doc.
48] as the Opinion and Order of this Court. It is hereby
ORDERED that Movant's 28 U.S.C. § 2255 Motion [Doc.
40], Motion for Due Process on 28 U.S.C. § 2255 Habeas
Corpus Petition [Doc. 47], and Memorandumotion of Law
Requesting to Supplement This Foregoing Brief to 28 U.S.C.
2255 Petition [Doc. 43] are DENIED.
further ORDERED that because there is no reasonable argument
that Defendant's § 2255 motion has merit, it also
DENIES Defendant a Certificate of Appealability
("COA"). See 28 U.S.C. § 2253(c)(2);
Rule l l(a) of the Rules Governing Habeas Corus Cases Under
28 U.S.C. § 2255 ("The district court must issue ...