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Newell v. United States

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

May 22, 2019

CARLOS NEWELL, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

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

          UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

          JANET F. KING JUDGE.

         Movant 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.[1] The matter is before the Court on the motion to vacate, as amended [55, 63], and Respondent's response [64].[2] For the reasons discussed below, Movant's motion to vacate and a certificate of appealability (COA) are due to be denied.

         I. Background

         The grand jury for the Northern District of Georgia indicted Movant for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) (including interstate commerce element) and 924(e). (Indictment, ECF No. 1). Represented by Paul M. Cognac, Movant pleaded guilty. (Guilty Plea and Plea Agreement, ECF No. 39-1; Tr. of Plea Hr'g, ECF No. 62). On October 4, 2017, the Court imposed sentence, and judgment was entered on October 5, 2017. (J., ECF No. 43).

         In his initial motion to vacate, Movant raises the following grounds for collateral relief: (1) the federal government violated Movant's Second Amendment rights, (2) the federal government violated Movant's Fifth Amendment rights by usurping Georgia's authority to adjudicate his crime, (3) the federal government misapplied and violated the Interstate Commerce Clause, and (4) the District Court lacked subject matter jurisdiction to adjudicate a claim that properly should be before a Georgia court. (Mot. to Vacate, ECF No. 55). In his amendment to his motion to vacate, filed on February 23, 2019, [3] Movant raises the following additional grounds: (A) ineffective assistance of counsel for failing to ask the court at sentencing to have his sentence run concurrently with a not yet imposed state sentence, (B) ineffective assistance of counsel for failing to explain to Movant that the government would have to prove at trial the interstate commerce element of his crime, (C) the federal government violated Movant's Fifth Amendment rights by usurping Georgia's authority to adjudicate his crime, and (D) the federal government misapplied and violated the Interstate Commerce Clause. (Am. to Mot. to Vacate).

         II. 28 U.S.C. § 2255 Standard

         Section 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. 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), which is limited.

         Collateral review of a claim that could have been raised on direct appeal, but was not, is foreclosed unless the movant can show cause and prejudice for his default or actual innocence. Fordham v. United States, 706 F.3d 1345, 1349 (11th Cir. 2013).[4] “Once [a] defendant's chance to appeal has been waived or exhausted, . . . we are entitled to presume he stands fairly and finally convicted, ” and “to obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal.” Frady, 456 U.S. at 164, 166.

         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, 365 F.3d at 1232 (quoting Richards v. United States, 837 F.2d 965, 966 (11th Cir. 1988)) (internal quotation marks omitted). A constitutional claim of ineffective assistance of counsel, which generally cannot be fully litigated on direct appeal, 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).

         “The 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.

         III. Discussion

         A. Initial Motion to Vacate

         In pleading guilty, Movant voluntarily and expressly waived the right to appeal or collaterally attack his conviction or sentence, with exceptions for a direct appeal of an upward departure from his sentencing guidelines range, for a collateral attack on ineffective assistance of counsel, or for filing a cross appeal if the government appealed. (Guilty Plea and Plea Agreement ¶ 28). In signing the plea agreement, Movant stated that he had read the agreement, had carefully reviewed each part thereof with his attorney, understood and voluntarily agreed to the terms thereof, and understood the appeal and collateral review waiver. (Id. at 13-14).

         At his plea hearing, the court, among other things, questioned Movant whether he understood that he was giving up his right to appeal his sentence unless the Court gave him a sentence above the guidelines range or the government appealed, and Movant stated that he understood. (Tr. for Guilty Plea Hr'g at 8). Movant affirmed that he had signed the agreement, that he had received adequate opportunity to discuss his case with his counsel, that he was satisfied with counsel's ...


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