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Murrey v. United States

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

March 15, 2019

FABIAN MURRAY, BOP Reg. # 64102-019, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

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

          UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

          ALAN J. BAVERMAN, UNITED STATES MAGISTRATE JUDGE

         Movant, Fabian Murray, filed a pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody. [Doc. 458.][1] The Government filed a response in opposition, [Doc. 462], and Movant filed a memorandum of law in support of the § 2255 motion, [Doc. 463-1 at 2-28]. For the reasons discussed below, the undersigned RECOMMENDS that the § 2255 motion 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 April 18, 2014, Movant pleaded guilty to sex trafficking of minors, in violation of 18 U.S.C. §§ 2 and 1591(a)(1) & (b)(1), and conspiracy to engage in sex trafficking of minors, in violation of 18 U.S.C. § 1594(c). [Docs. 201, 326.][3] On May 14, 2015, the District Court, Duffey, J., filed the Judgment and Commitment, sentencing Movant to 215 months of imprisonment, followed by five years of supervised release. [Doc. 412.] The United States Court of Appeals for the Eleventh Circuit affirmed. See United States v. Murray, 653 Fed.Appx. 714 (11th Cir. June 28, 2016) (per curiam). [Doc. 441.]

         Movant timely executed his § 2255 motion on August 8, 2017. [Doc. 458 at 12.] Movant presents the following grounds for relief:

         1. Trial counsel provided ineffective assistance by failing to

(a) investigate “hotel video footage, ” question witnesses, and contact a medical expert,
(b) move to dismiss the indictment for lack of jurisdiction,
(c) properly advise Movant on the plea agreement,
(d) argue at sentencing that the Government breached the plea ...

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