United States District Court, N.D. Georgia, Atlanta Division
FINAL REPORT AND RECOMMENDATION
T. WALKER UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on a pro se Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody filed by Janice
Cooks. See (Doc. 52). The Rules Governing Section
2255 Proceedings for the United States District Courts
provide that "[i]f it plainly appears from the motion,
any attached exhibits, and the record of prior proceedings
that the moving party is not entitled to relief, the [court]
must dismiss the motion and direct the clerk to notify the
moving party." 28 U.S.C. fll. § 2255, Rule 4(b).
Here, it plainly appears that Cooks is not entitled to
relief. Accordingly, the undersigned RECOMMENDS that the
motion be DISMISSED and that a Certificate of Appealability
pleaded guilty pursuant to a written plea agreement,
see (Doc. 27), and was sentenced on March 26, 2019,
see (Docs. 44 & 45). She moved to amend the
judgment on March 28, 2019, see (Doc. 48), and an
order granting her motion was entered the same day,
see (Doc. 49). As amended, the judgment provides,
inter alia, that Cooks "be imprisoned for a
total term of four (4) months," "participate in a
home confinement detention program for two hundred forty
(240) days as a condition of her supervised release,"
and pay restitution in the amount of $234, 719.51. (Doc. 45
at 2, 5) (emphasis deleted). See also (Doc. 49)
(providing that these provisions of the judgment "remain
sentencing, Cooks was advised of her right to file a direct
appeal, see (Unmbrd. Dkt. Entry dated March 26,
2019), but no notice of appeal appears in the docket.
Cooks filed the pro se § 2255 motion now before
the Court, asserting in ground one that "[t]he ruling
for the restitution and fine was excessive" and in
ground two that "incarceration [is] excessive."
(Doc. 52 at 4-5).
have long and consistently affirmed that a collateral
challenge, such as a § 2255 motion, may not be a
surrogate for a direct appeal." Lynn v. United
States, 365 F.3d 1225, 1232 (11th Cir. 2004). Cooks'
two grounds for relief raise issues that are routinely
handled in direct appeals. And, "[ u ]nder the
procedural default rule, a defendant generally must advance
an available challenge to a criminal conviction or sentence
on direct appeal, or else the defendant is barred from
presenting that claim in a§ 2255 proceeding.
Id. at 1234. "This rule applies to all claims,
including constitutional claims." Id.
Cooks did not raise these issues in a direct appeal, she
cannot raise them for the first time in a § 2255 motion
unless she can establish "one of two exceptions to the
procedural default rule," either (1) "cause for not
raising the claim of error on direct appeal and actual
prejudice from the alleged error" or (2) "a
constitutional violation [that] has probably resulted in the
conviction of someone who is actually innocent."
Id. (internal quotation marks and citations
omitted). Nothing in Cooks' § 2255 motion indicates
that either of these two exceptions applies to her.
Cooks is plainly not entitled to relief in a § 2255
proceeding on either ground for relief that she has raised,
the undersigned has recommended that the Court dismiss her
motion. See 28 U.S.C. fll. § 2255, Rule 4(b).
because Cooks does not meet the meet the requisite standards,
the undersigned has further recommended that a Certificate of
Appealability be denied. See Slack v. McDaniel, 529
U.S. 473, 484 (2000) (requiring a two-part showing (1)
"that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a
constitutional right," and (2) "that
jurists of reason would fnd it debatable whether the district
court was correct in its procedural ruling"); see
also Spencer v. United States, 773 F.3d 1132, 1138 (11th
Cir. 2014) (en bane) (holding that the Slack v.
McDaniel standard will be strictly applied
undersigned notes that Cooks states in her § 2255 motion
that she e-mailed her attorney to discuss the appeal process,
but "as of 4-5-19 [had received] no response."
(Doc. 52 at 4). Ordinarily, "[i]n a criminal case, a
defendant's notice of appeal must be filed in the
district court within 14 days after the later of: (i) the
entry of either the judgment or the order being appealed; or
(ii) the filing of the government's notice of
appeal." Fed. R. App. P. 4(b)(1)(A). However, a district
court may, "upon a finding of excusable neglect or good
cause ... - before or after the time [for filing a notice of
appeal] has expired, with or without motion and notice -
extend the time to file a notice of appeal for a period not
to exceed 30 days from the expiration of the time otherwise
prescribed by this Rule 4(b)." Fed. R. App. P. 4(b)(4).
The undersigned leaves for determination by the Court whether
this case warrants such an extension.
Clerk is DIRECTED to terminate the referral of this case ...