United States District Court, N.D. Georgia, Atlanta Division
TO VACATE 28 U.S.C. § 2255
UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND
F. KING, UNITED STATES MAGISTRATE JUDGE
Quinton Jackson, proceeding with counsel, has filed a 28
U.S.C. § 2255 motion to vacate, set aside, or correct
his federal sentence entered in this Court under the above
criminal docket number. The matter is before the Court on the
motion to vacate , Respondent's response , and
Movant's reply . For reasons discussed below,
Movant's motion to vacate and a certificate of
appealability (COA) are due to be denied.
grand jury for the Northern District of Georgia indicted
Movant on one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1) and
924(e). (Indictment, ECF No. 1). Movant, represented by
Allison C. Dawson, proceeded to trial, at which he was found
guilty, and the Court imposed a 262-month term of
imprisonment. (J., ECF No. 88). Movant, represented by Mark
Yuracheck, appealed, and on November 16, 2017, the Eleventh
Circuit Court of Appeals affirmed the judgment against
Movant. United States v. Jackson, 713 Fed.Appx. 963,
969 (11th Cir. 2017).
again represented by Yuracheck, now seeks collateral review
and raises two grounds for relief: (1) ineffective assistance
of counsel for failing to pursue a motion to suppress based
on lack of probable cause to stop Movant for a tag light
violation under O.C.G.A. § 40-8-23(d) and failing to
object to the Magistrate Judge's finding of probable
cause for the stop and (2) ineffective assistance of counsel
for failing to object at sentencing to the use of prior
convictions to enhance Movant's sentence under Armed
Career Criminal Act (ACCA) when the prior convictions had not
been seen or heard by the jury or admitted by Movant. (Mot.
to Vacate at 5, ECF No. 102).
28 U.S.C. § 2255 Standard
2255 of Title 28 allows a district court to vacate, set
aside, or correct a federal sentence that was imposed in
violation of the Constitution or laws of the United States or
was imposed by a court without jurisdiction, exceeds the
maximum sentence authorized by law, or is otherwise subject
to collateral attack. 28 U.S.C. § 2255. Collateral
relief, however, is limited. “Once [a] defendant's
chance to appeal has been waived or exhausted, . . . we are
entitled to presume he stands fairly and finally
convicted[.]” United States v. Frady, 456 U.S.
152, 164 (1982). The § 2255 movant bears the burden to
establish his right to collateral relief. Rivers v.
United States, 777 F.3d 1306, 1316 (11th Cir. 2015).
a matter has been decided adversely to a defendant on direct
appeal it cannot be re-litigated in a collateral attack under
section 2255.” Stoufflet v. United States, 757
F.3d 1236, 1239 (11th Cir. 2014) (quoting United States
v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000))
(internal quotation marks omitted). 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.” Lynn
v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004)
(quoting Richards v. United States, 837 F.2d 965,
966 (11th Cir. 1988)) (internal quotation marks omitted).
Thus, a constitutional claim of ineffective assistance of
counsel generally is properly raised on collateral review in
order to allow for adequate development and presentation of
relevant facts. Massaro v. United States, 538 U.S.
500, 505-09 (2003).
district court is not required to grant a petitioner an
evidentiary hearing if the § 2255 motion ‘and the
files and records of the case conclusively show that the
prisoner is entitled to no relief.'” Rosin v.
United States, 786 F.3d 873, 877 (11th Cir. 2015)
(quoting § 2255(b)). That is the case here, as shown in
the discussion below.
Ineffective Assistance of Counsel on Motion to
to trial, Movant filed a motion to suppress arguing,
inter alia, that the officers lacked cause to effect
the traffic stop which led to his arrest. (Mot. to Suppress
at 1, ECF No. 16). In his post-hearing brief, Movant asserted
that officers had exceeded the scope of the traffic stop but
did not specifically argue that there was no probable cause
to stop him based on a tag light violation. (Def. Br. in
Support of Mot. to Suppress, ECF No. 26). The Magistrate
Judge, in recommending a denial of the motion to suppress,
found, inter alia, as follows -
The APD officers had probable cause to stop Defendant's
vehicle on the basis of their observation of a violation of
Georgia traffic law, that is, inoperable tag lights.
See O.C.G.A. § 40-8-23(d) (“Either a
taillight or a separate light shall be so constructed and
placed as to illuminate with a white light the rear
registration plate and render it clearly legible from a
distance of 50 feet to the rear.”). On August 22, 2014,
between 9:00 and 9:30 p.m., Officers Romer, Munson and Moore
observed Defendant Jackson driving a silver Chevy Impala
sedan on Boulevard as he turned onto Angier. (Tr. at 8-9, 11,
23-24, 46-49, 98). As Defendant was driving westbound on
Angier, the officers followed him observing that the tag
lights were not working on his vehicle and, therefore, were
not illuminating the vehicle's license
plate. (Tr. at 8-9, 23-24, 47- 48, 67-69). At the
intersection of Angier and Parkway, the officers activated
the patrol vehicle's blue lights, and Defendant stopped
shortly after turning onto Parkway. The patrol vehicle
stopped eight to ten feet behind Defendant's vehicle.
(Tr. at 9-10, 25-26, 48-49, 86). These observations
established a violation of O.C.G.A. § 40-8-23(d).
See Carnes v. State, 293 Ga.App. 549, 550, 667
S.E.2d 620, 621 (2008) (“‘There was probable
cause for the initial stop, based on the officer's
observance of a traffic violation, the nonfunctioning tag
light.'”) (citations omitted); and see United
States v. Cubillos, 2012 WL 1636175, at *3 (N.D.Ga.
March 20, 2012), adopted by 1:10-CR86-RWS, Doc. 721
(N.D.Ga. May 8, 2012) (based on the officer's testimony
that there was no tag light on the vehicle as required by
law, he “had probable cause upon which to stop the
[vehicle] for this perceived violation of Georgia
law”). The traffic stop was lawfully initiated.
(R. & R. on Mot. to Suppress at 14-15, ECF No. 30).
Movant in his objections admitted that he had “violated
a traffic ordinance for not having a tag light” and did
not object to the above finding. (Objs. at 2, ECF No. 35).
The Court subsequently adopted the Report and Recommendation
and denied the motion to suppress. (Order of May 10, 2016,
ECF No. 44).
his conviction, Movant appealed and argued “that the
district court erred by denying his motion to suppress
because officers did not have probable cause to conduct a
traffic stop based on his tag light violation.”
Jackson, 713 Fed.Appx. at 963. Movant argued that
probable cause for a § 40-8-23(d) stop requires officers
to observe that the registration plate is not clearly visible
and that it is not visible from a distance of fifty
feet, relying on State v. Mathis, 338 Ga.App. 86,
789 S.E.2d 336 (2016), and Draper v. Reynolds, 369
F.3d 1270, 1272 (11th Cir. 2004). Opening Br. at 19,
Jackson, 713 Fed.Appx. 963, 2017 WL 2255859. Movant
asserted that probable cause for a stop was absent because
the government showed only that the tags were not clearly
legible from a distance of approximately 383 feet (the
distance when the stop was initiated, according to Movant)
and did not show that the tags were not clearly legible from
a distance of fifty feet. Id. at 20-23.
Eleventh Circuit Court of Appeals found as follows -
During their patrol that night, the officers stopped a
vehicle driven by Defendant because the vehicle did not have
tag lights, which are lights that illuminate the license