United States District Court, N.D. Georgia
D. EVANS, UNITED STATES DISTRICT JUDGE
before the Court is the Magistrate Judge's Report and
Recommendation, [Doc. 68], (R&R) recommending that
Movant's 28 U.S.C. § 2255 motion to vacate, [Doc.
54], as amended, [Doc. 55], be denied. Movant has filed his
objections in response to the R&R. [Doc. 71].
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. "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." Marsden v.
Moore, 847 F.2d 1536, 1548 (11th Cir. 1988).
entered a plea agreement and pled guilty to bank robbery and
weapons charges. After determining that Movant qualified as
an armed career criminal under the Armed Career Criminal Act
(ACCA) 18 U.S.C. § 924(e), and as a career offender
within the meaning of §§ 4B1.1 & 4B1.2 of the
Sentencing Guidelines, this Court sentenced Movant to
concurrent terms of 235 months and a consecutive sentence of
five years. Movant appealed but later voluntarily dismissed
has now filed his § 2255 motion in which he raises two
claims: (1) his Career Offender and Armed Career Criminal
designations are invalid in light of the recent Supreme Court
decisions in Mathis v. United States. 136 S.Ct.
2243, 2256-57 (2016) and Johnson v. United States.
135 S.Ct 2551 (2015), and (2) his South Carolina conviction
for attempted armed robbery does not qualify as an ACCA
R&R, the Magistrate Judge concluded that the motion to
vacate should be denied because of Movant's knowing and
voluntary waiver of his § 2255 rights as part of his
plea agreement. In particular, the Magistrate Judge noted
that a voluntary and intelligent guilty plea is not rendered
involuntary or unintelligent by subsequent judicial
decisions, and a § 2255 waiver is valid and enforceable
even against claims based on subsequent changes in the law.
Accordingly, even to the degree that Mathis and
Johnson might otherwise provide Movant a valid
claim, Movant cannot raise that claim because he waived his
right to file a § 2255 motion.
objections, Movant raises a claim of ineffective assistance
of counsel because of his counsel's failure to advise him
that he could plead guilty without a plea agreement, thus
preserving his right to appeal and to file a § 2255
motion. Movant further argues that he can demonstrate that he
is actually innocent. As Movant raises these claims for the
first time in his objections, this Court declines to consider
them. See Williams v. McNeil 557 F.3d 1287 (11th
Cir. 2009) ("[A] district court has discretion to
decline to consider a party's argument when that argument
was not first presented to the magistrate judge.").
Movant's final argument relates to his claim that his
South Carolina conviction should not have counted as an ACCA
predicate, which does not indicate that the Magistrate Judge
erred in concluding that his claims are barred by his knowing
and intelligent § 2255 waiver.
reviewed the R&R in light of Movant's objections,
this Court holds that the Magistrate Judge's findings and
conclusions are correct. Accordingly, the R&R, [Doc. 68],
is hereby ADOPTED as the order of this Court, and the motion
to vacate, [Doc. 54], as amended, [Doc. 55], is DENIED. The
Clerk is DIRECTED to close Civil Action Number 1:17-CV-2781
motion for appointment of counsel and his other motions
contained in [Doc. 65] are DENIED as moot. This Court agrees
with the Magistrate Judge that "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), and
Movant is thus not entitled to a hearing. See
Winthrop-Redin v. United States. 767 F.3d 1210.1216
(11th Cir. 2014).
Court further agrees with the Magistrate Judge that Movant
has failed to make a substantial showing of the denial of a
constitutional right, and a Certificate of Appealability is
DENIED pursuant to 28 U.S.C. § 2253(c)(2).
 It appears that the motion and the
amended motion are ...