United States District Court, N.D. Georgia, Atlanta Division
D. EVANS, UNITED STATES DISTRICT JUDGE
before the Court is the Magistrate Judge's Report and
Recommendation (R&R), [Doc. 172],
recommendingthattheinstant28 U.S.C. § 2255 motion to
vacate, [Doc. 167], be denied. Movant has filed his
objections in response to the R&R. [Doc. 174].
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
nova basis and any non-objected portion under a
"clearly erroneous" standard. "Parties fling
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).
was convicted in this Court on October 5, 2015, pursuant to
his guilty plea to a single count of felon in possession of a
firearm, and after a lengthy sentencing hearing, this Court
imposed a sentence of 100 months, which was at the bottom of
the 100-to-125-month range this Court calculated under the
§ 2255 motion, Movant raises a single claim: that his
trial counsel was ineffective in telling Movant that if he
pled guilty, he would receive a time-served sentence. In
determining that Movant was not entitled to relief, the
Magistrate Judge fund that, while Movant now insists that he
would have opted for a trial if he had known he would have
received a sentence in excess of time served, that claim is
flatly contradicted by his testimony at the plea hearing.
According to the Magistrate Judge:
At the change of plea hearing, Movant was clearly and fully
warned that no accurate prediction could be made about what
his sentence would be. Movant testified under oath that the
Government had not made any promises not contained in the
plea agreement that caused him to plead guilty. [Doc. 120 at
10.] Further, the district judge clearly advised Movant that
the actual sentence could not be predicted because it would
be based on a PSR that had not yet been prepared.
[Id. at 5.] Movant stated that he understood. [14.
at 6.] Movant further stated that he understood he faced a
maximum sentence of ten years' imprisonment.
[Id. at 5-6.] Counsel for Movant and the Government
estimated a potential guidelines range of 30 to 71 months.
[Id. at 8-9.] The Court emphasized to Movant that
there was a "wide range" in which his sentence
could fall and no one would not [sic] know what the
guidelines range would be until the sentencing hearing.
[Id. at 9.] Movant stated that he understood.
[Id.] The Court warned Movant that while the
Government agreed in the plea agreement to make certain
recommendations that would be favorable to him, the Court was
not bound to accept any of those recommendations, and if the
Court chose not to accept them, Movant would not be able to
withdraw his guilty plea. [Id. at 9-10.] Movant
again stated that he understood. [Id. at 10.]
[Doc. 172 at 6-7].
Magistrate Judge pointed out, "[t]here is a strong
presumption that the statements made during the [plea]
colloquy are true," United States v. Medlock, .
12 F.3d 185, 187 (11th Cir. 1994), and "a
defendant's unexpressed reliance on his attorney's
speculation cannot overcome his direct responses" to the
court during the plea colloquy. United States v.
Gonzalez-Mercado. 808 F .2d 796, 800 n.10 (11th Cir.
1987); see also Stillwell v. United States. 709
Fed.Appx. 585, 590 (11th Cir. 2017) (finding movant was not
prejudiced where "both the plea agreement and the
district court informed him that he could not rely on
counsel's estimated sentence").
objections, Movant attempts draw a distinction "between
bad/wrong advice provided by counsel and advice based upon a
misrepresentation," [Doc. 174 at 2], but he fails to
cite to (and this Court could not locate) case law that
demonstrates that such a distinction exists. What matters is
what trial counsel told Movant and not counsel's
knowledge or motivations when making the statement.
further contends that his statements at the plea
colloquy-that he faced a ten-year maximum sentence, that the
Sentencing Guidelines calculation would likely result in a
sentence in the range of 30 to 71 months, and that the Court
was not bound by any favorable recommendations - were not
inconsistent with his contention that he would have not
entered a guilty plea but for his prior counsel's
misrepresentation that he would receive a time-served
sentence. This Court disagrees. At the time of the
sentencing, Movant had been detained just under two years. He
thus would have learned during the plea hearing that it was
likely he would receive a sentence that included further
incarceration, and he nonetheless proceeded to enter his
guilty plea. See Cadavid-Yepes v. United
States. 635 Fed.Appx. 291, 300 (6th Cir. 2016)
(denying relief on claim of ineffective assistance for trial
counsel's assuring defendant that, if he plead guilty, he
would receive a time-served sentence because trial court
informed defendant at the plea hearing that it could impose a
longer sentence than that estimated by the parties based on a
preliminary guidelines calculation).
footnote, Movant also contends that the Magistrate Judge
improperly distinguished Lee v. United States. 137
S.Ct. 1958 (2017). However, this Court concludes that the
Magistrate Judge was correct. Lee was a resident alien
defendant whose counsel assured him that he would not be
deported if he pled guilty, and the Supreme Court concluded
that Lee should be permitted to withdraw his plea because his
deportation was mandatory as a result of his plea. It was
clear from the record and from the transcript of Lee's
plea hearing that he was concerned about his deportation at
the time that he entered his plea, and in this case Movant
was repeatedly advised that the Court could impose any
sentence up to ten years.
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.
172], is hereby ADOPTED as the order of this Court, and the
motion to vacate brought pursuant to 28 U.S.C. § 2255,
[Doc. 167], is DENIED. The Clerk is DIRECTED to close Civil
Action Number 1:18-CV-2777-0DE.
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 ...