United States District Court, N.D. Georgia, Atlanta Division
C. JONES UNITED STATES DISTRICT JUDGE
before the Court is the Magistrate Judge's Report and
Recommendation (R&R) recommending that the instant motion
to vacate brought pursuant to 28 U.S.C. § 2255 be
denied. [Doc. 85]. Movant has filed his objections in
response to the R&R. [Doc. 87].
district judge has broad discretion to accept, reject, or
modify a magistrate judge's proposed findings and
recommendations. United States v. Raddatz, 447 U.S.
667, 680 (1980). Pursuant to 28 U.S.C. § 636(b)(1), the
Court reviews any portion of the Report and Recommendation
that is the subject of a proper objection on a de
novo basis and any non-objected portion under a
“clearly erroneous” standard.
describing Movant's criminal activities, while he was in
prison for a state conviction, he engaged in a fraudulent
scheme whereby he used a contraband cell phone and, posing as
a law enforcement officer, called individuals and convinced
them to pay him a “fine” to avoid being arrested
for purportedly missing jury duty. As he instructed,
Movant's victims purchased cash cards and provided the
numbers to him. Movant's confederates then transferred
the money to other cards so that the ill-gotten funds were no
longer traceable. Movant pleaded guilty to one count of money
laundering, and this Court sentenced him to one hundred and
fifty-one months confinement and three years of supervised
release. At sentencing, this Court attributed one million
dollars in losses to him. Movant filed an appeal which the
Eleventh Circuit dismissed because Movant had waived his
right to appeal pursuant to his plea agreement.
well-reasoned R&R, the Magistrate Judge recommends that
Movant's § 2255 motion be denied because he has
failed to demonstrate that he is entitled to relief. In his
§ 2255 motion, he originally raised two claims of
ineffective assistance of counsel: (1) his trial counsel was
ineffective for failing to adequately object to the one
million dollar loss amount, and (2) his trial counsel was
ineffective for influencing him to agree to waive his appeal
rights. The Magistrate Judge found that Movant abandoned his
second claim regarding his appeal waiver, and Movant does not
object to that finding.
respect to his first claim, Movant claims that the one
million dollar loss amount was based solely on his
“boast” to law enforcement agents that “
had he still been in prison, he could have been a millionaire
and could have laundered one million in proceeds by that
time.” [Doc. 87 at 3]. However, there is a videotape of
that statement, and the following is what Movant actually
said in his discussion with the agents:
Law Enforcement Officer: So it was then thousands and
thousands and thousands of dollars?
Movant: Yeah, I could probably be a millionaire if I saved
all that money.
Law Enforcement Officer: Really?
Movant: No. questions asked.
. . . .
Law Enforcement Officer: So over the time period, the, the
6-8 months, the 6-7 months, that you said, I mean, you said
it yourself, it's probably a million dollars or so that
Doc. 85 at 2 (quoting an exhibit to the Government's