United States District Court, N.D. Georgia, Atlanta Division
PHILIP CHRISTOPHER WALL, BOP Reg. # 66608-019, Movant,
UNITED STATES OF AMERICA, Respondent.
TO VACATE 28 U.S.C. § 2255
UNITED STATES MAGISTRATE JUDGE'S ORDER AND FINAL
REPORT AND RECOMMENDATION
J. BAVERMAN, UNITED STATES MAGISTRATE JUDGE
Philip Christopher Wall, filed a pro se motion under 28
U.S.C. § 2255 to vacate, set aside, or correct his
sentence in criminal action number 1:16-cr-104-AT-AJB-1.
[Doc. 14.] The Government filed a response in
opposition, [Doc. 19], and Movant filed a reply, [Doc. 22].
also submitted a motion to stay, [Doc. 24], but he fails to
give a valid reason to stay this case. Accordingly, the
undersigned ORDERS that Movant's motion
to stay, [Doc. 24], is DENIED.
reasons discussed below, the undersigned
RECOMMENDS that the § 2255 motion,
[Doc. 14], be DENIED.
28 U.S.C. § 2255 Standard
motion to vacate, set aside, or correct a sentence may be
made “upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack . . . .” 28 U.S.C. § 2255(a).
“[C]ollateral review is not a substitute for a direct
appeal . . . .” Lynn v. United States, 365
F.3d 1225, 1232 (11th Cir. 2004) (per curiam).
Section 2255 relief “is reserved for transgressions of
constitutional rights and for that narrow compass of other
injury that could not have been raised in direct appeal and
would, if condoned, result in a complete miscarriage of
justice.” Id. (quoting Richards v. United
States, 837 F.2d 965, 966 (11th Cir. 1988))
(internal quotation marks omitted).
§ 2255 movant “has the burden of sustaining his
contentions by a preponderance of the evidence.”
Tarver v. United States, 344 Fed.Appx. 581, 582
(11th Cir. Sept. 18, 2009) (per curiam) (quoting
Wright v. United States, 624 F.2d 557, 558
(5th Cir. 1980)). The Court must conduct an evidentiary
hearing unless “the motion and the files and records of
the case conclusively show that the prisoner is entitled to
no relief . . . .” 28 U.S.C. § 2255(b). “[A]
district court need not hold an evidentiary hearing where the
movant's allegations are affirmatively contradicted by
the record, or the claims are patently frivolous.”
Bain v. United States, 565 Fed.Appx. 827, 828
(11th Cir. May 12, 2014) (per curiam) (quoting
Aron v. United States, 291 F.3d 708, 715
(11th Cir. 2002)) (internal quotation marks
present case, the undersigned determines that an evidentiary
hearing is not needed because the § 2255 motion and
record conclusively show that Movant is entitled to no
March 22, 2016, Movant pleaded guilty to sexual exploitation
of a minor, in violation of 18 U.S.C. § 2252(a)(2) &
(b)(1). [Docs. 1, 3.] On June 3, 2016, the District Court
filed the Judgment and Commitment, sentencing Movant to ten
years of imprisonment, followed by eight years of supervised
release. [Doc. 9.] Movant did not appeal. [Doc. 14 at 1.]
Movant timely executed his § 2255 motion on May 1, 2017.
[Id. at 12.] Movant claims that (1) his home was
searched and he was interrogated unlawfully, (2) the
prosecutor and probation officer made “incorrect
statements” at sentencing, and (3) trial counsel
provided ineffective assistance. [Id. at 4-9; Doc.
14-1 at 1-5.]
Grounds One and Two
“Generally, if a challenge to a conviction or sentence
is not made on direct appeal, it will be procedurally barred
in a 28 U.S.C. § 2255 challenge” unless the movant
“overcome[s] this procedural default by showing both
cause for his default as well as demonstrating actual
prejudice suffered as a result of the alleged error.”
Black v. United States, 373 F.3d 1140, 1142
(11th Cir. 2004). “[T]o show cause for
procedural default, [a § 2255 movant] must show that
some objective factor external to the defense prevented [him]
or his counsel from raising his claims on direct appeal and
that this factor cannot be fairly attributable to [his] own
conduct.” Lynn, 365 F.3d at 1235. To
demonstrate actual prejudice, a movant must show that the
alleged error “worked to his actual and
substantial disadvantage, infecting his entire trial with
error of constitutional dimensions.” Reece v.
United States, 119 F.3d 1462, 1467 (11th Cir.
1997) (quoting United States v. Frady, 456 U.S. 152,
alternative to showing cause and actual prejudice, a §
2255 movant may overcome a procedural default if “a
constitutional violation has probably resulted in the
conviction of one who is actually innocent.”
Lynn, 365 F.3d at 1234-35 (quoting Mills v.
United States, 36 F.3d 1052, 1055 (11th Cir.
1994) (per curiam)) (internal quotation marks omitted).
“Actual innocence ...