United States District Court, N.D. Georgia, Atlanta Division
RICHARD W. STORY UNITED STATES DISTRICT JUDGE.
before the Court is the Magistrate Judge's Report and
Recommendation (R&R) recommending that the pending motion
brought pursuant to 28 U.S.C. § 2255 be denied. [Doc.
194]. Movant has filed what he has styled as an
"Amendment to Government Reply" but this Court will
construe as his objections in response to the R&R. [Doc.
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
novo basis and any non-objected portion under a
"clearly erroneous" standard. "Parties filing
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).
jury trial, Movant was convicted in this Court of armed
robbery, in violation of 18 U.S.C. § 1951 (a) and (2),
and with brandishing a firearm during that robbery, in
violation of 18 U.S.C. § 924(c)(1)(A)(ii), in connection
with his armed robbery of a cell phone store in East Point,
Georgia. This Court imposed a sentence of 108 months of
incarceration. After unsuccessfully appealing, United
States v. Steele, 733 Fed.Appx. 472 (11th Cir. 2018),
Movant filed the instant 28 U.S.C. § 2255 motion to
vacate claiming that his trial counsel was ineffective for
(1) failing to argue to the jury during closing that Movant
used a fake gun, (2) stating during closing argument that it
did not matter whether the gun was real or fake, and (2)
failing to hire an expert witness to examine the gun and
opine that it was fake.
R&R, the Magistrate Judge recommends that Movant's
§ 2255 motion be denied because he failed to establish
that his trial counsel was deficient during closing argument
in failing to argue that the gun was fake because the only
evidence that the gun actually was fake was Movant's
conflicting testimony to that effect. In contrast, the sales
clerk at the cell phone store testified that the gun Movant
pointed in her face looked real based on her experience with
guns. [Doc. 180 at 33-34]. Trial counsel's choices
regarding how to frame closing arguments are a quintessential
part of trial strategy and must be evaluated with a high
degree of deference. Marquez v. United States, 2013
WL 12336140 at *18 (S.D. Fla. June 17, 2013). Trial counsel
focused his closing argument on Movant's contention that
he was coerced into robbing the store by gang members. Given
the evidence presented at Movant's trial, it was clearly
reasonable for counsel to choose to not argue that the gun
Magistrate Judge next concluded that any confusion that trial
counsel might have created with jurors by stating in closing
argument that it did not matter whether the gun was real or
fake would have been corrected by this Court's jury
instruction that, in order to find Movant guilty of the
brandishing offense, it must find that Movant "used a
firearm" during and in relation to the robbery and that
"[a] 'firearm' is any weapon designed to or
readily convertible to expel a projectile by the action of an
explosive." [Doc. 181 at 48-49]. The law presumes that
the jury followed that instruction, United States v.
Almanzar, 634 F.3d 1214, 1223 (11th Cir. 2011), and
"a proper jury instruction can cure an inaccurate
statement by an attorney during closing argument,"
Hand v. Sec'y. Dep't of Corr., 305 Fed.Appx.
547, 551 (11th Cir. 2008) (citing Johnson v.
Alabama, 256 F.3d 1156 (11th Cir.2001)).
the Magistrate Judge concluded that trial counsel was not
ineffective for failing to call a gun expert to testify that
the gun was fake because the gun has not been recovered, and
an expert cannot be hired to inspect a nonexistent gun.
objections, Movant generally reasserts his arguments that
trial counsel was ineffective, and this Court concludes that
those arguments are unavailing.
reviewed the record in light of Movant's objections, this
Court holds that the Magistrate Judge's findings and
conclusions are correct. Accordingly, the R&R, [Doc.
194], is hereby ADOPTED as the order of this Court, and the
§ 2255 motion, [Doc. 188], is DENIED.
is not entitled to representation of counsel in connection
with a § 2255 motion, Movant's motion for
appointment of counsel, [Doc. 187], is likewise DENIED.
Court further agrees with the Magistrate Judge that Movant
has failed to raise any claim of arguable merit, and a
Certificate of Appealability is DENIED pursuant to 28 U.S.C.