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United States v. Wall

United States District Court, N.D. Georgia, Atlanta Division

February 13, 2019

PHILIP CHRISTOPHER WALL, BOP Reg. # 66608-019, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

         MOTION TO VACATE 28 U.S.C. § 2255

          UNITED STATES MAGISTRATE JUDGE'S ORDER AND FINAL REPORT AND RECOMMENDATION

          ALAN J. BAVERMAN, UNITED STATES MAGISTRATE JUDGE

         Movant, 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.][1] The Government filed a response in opposition, [Doc. 19], and Movant filed a reply, [Doc. 22].

         Movant 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.

         For the reasons discussed below, the undersigned RECOMMENDS that the § 2255 motion, [Doc. 14], be DENIED.

         I. 28 U.S.C. § 2255 Standard

          A 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).

         A § 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)[2]). 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 omitted).

         In the 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 relief.

         II. Discussion

         On 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.]

         A. 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, 170 (1982)).

         As an 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 ...


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