United States District Court, N.D. Georgia, Atlanta Division
PAUL L. BLACK, Movant,
UNITED STATES OF AMERICA, Respondent.
RICHARD W. STORY, UNITED STATES DISTRICT JUDGE
before the Court is the Magistrate Judge's Report and
Recommendation (R&R) recommending that the instant 28
U.S.C. § 2255 motion to vacate be denied. [Doc. 251].
Petitioner has filed his objections in response to the
R&R. [Doc. 256].
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).
March 18, 2014, Movant pled guilty to Counts 1-4 of the
indictment, which charged Movant with various crimes in
connection with his operation of an illegal scheme in which
he produced and sold counterfeit credit cards and gift cards.
On December 12, 2014, this Court sentenced Movant to a
combined 180 months of incarceration to be followed by three
years of supervised release. After Movant's unsuccessful
appeal, he filed the now pending § 2255 motion. [Doc.
231 as amended Doc. 237]. After the Government responded,
[Doc. 240], and Movant has filed his reply memorandum, [Doc.
249], the Magistrate Judge issued his R&R, concluding
that Movant is not entitled to relief.
Movant's grounds for relief raised claims of ineffective
assistance of trial or appellate counsel. The Magistrate
Judge concluded that (1) the record clearly refutes
Movant's claim that his trial counsel was unprepared and
failed to aggressively litigate his motions to suppress the
evidence seized at his home, (2) Appellate counsel was not
ineffective for failing to challenge the trial court's
exclusion of Movant's proposed expert testimony because
that testimony was clearly inadmissible, (3) appellate
counsel was not ineffective in failing to raise issues
related to this Court's failure to suppress evidence and
the voluntariness of his guilty plea because those arguments
lacked merit, (4) trial counsel was not ineffective for
failing to properly argue against this Court's loss
calculation under the guidelines because Movant failed to
present any valid arguments that challenge this Court's
calculations and findings under the Guidelines that were not
considered and rejected by the Eleventh Circuit, and (5)
Movant's claim of cumulative error failed because there
was no error.
objections, Movant first contends that the Magistrate Judge
erred in determining that his trial counsel was not
ineffective for failing to argue that the loss amount
attributed to Movant was inaccurate. However, Movant's
arguments are foreclosed by the Eleventh Circuit's
determination in his appeal that this Court's use of
statistical sampling was a reasonable method for estimating
the total loss amount, and basing the loss amount on intended
loss rather than actual loss was appropriate. United
States v. Black, 678 Fed.Appx. 870, 870 (11th Cir.
2017). “Once a matter has been decided adversely to a
defendant on direct appeal, it cannot be re-litigated in a
collateral attack under section 2255.” United
States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000)
(citation and quotation omitted). As this Court is bound by
the Eleventh Circuit's determinations, Movant cannot
demonstrate that he was prejudiced by his trial counsel's
purported failure to challenge this Court's loss amount
next argues that his trial counsel was ineffective for
failing to argue that the home where the police discovered
credit and debit account numbers and counterfeit cards was
not leased in Movant's name and that there was no
evidence connecting him to the contraband. In response, this
Court points out that when Movant pled guilty, he admitted to
engaging in the illegal conduct for which he was convicted,
and that admission forecloses any challenge to the
sufficiency of the evidence possessed by the Government.
See United States v. Broce, 488 U.S. 563, 570
(1989). To the degree that Movant claims that his
counsel's supposed failures compelled him to plead
guilty, this Court's review of the record demonstrates
that the Magistrate Judge was correct in finding that
Movant's trial counsel clearly was not unprepared and
aggressively and effectively litigated Movant's case.
this Court now holds that the Magistrate Judge's findings
and conclusions are correct. As such, the R&R, [Doc.
251], is hereby ADOPTED as the order of this
Court, and the pending § 2255 motion, [Doc. 231 as
amended Doc. 237], is DENIED. The Clerk is
DIRECTED to close Case No. 1:18-CV-0524-RWS.
Court further agrees with the Magistrate Judge that
Petitioner has failed to raise any claim of arguable merit,
and a Certificate of Appealability is DENIED
pursuant to 28 U.S.C. § 2253(c)(2).