United States District Court, N.D. Georgia, Atlanta Division
ELEANOR L. ROSS UNITED STATES DISTRICT JUDGE
before the Court is the Magistrate Judge's Report and
Recommendation (R&R) recommending that the instant motion
to vacate brought pursuant to 28 U.S.C. § 2255 be
denied. [Doc. 133]. Movant has filed his objections in
response to the R&R. [Doc. 138].
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 17, 2016, Movant pled guilty in this Court to being a
felon in possession of a firearm. This Court imposed an
enhanced sentence of just over fifteen years pursuant to the
Armed Career Criminal Act ("ACCA") because Movant
had at least three prior convictions for serious drug
offenses. 18 U.S.C. § 924(e). Movant filed his §
2255 motion claiming (1) that two of the four convictions
used by this Court to impose the ACCA sentence were not
serious drug offenses under the ACCA, and (2) that his
counsel was ineffective for failing to raise an argument
regarding the constitutionality of the ACCA.
the ACCA sentence, this Court found that Movant had four
qualifying drug convictions: two in Fulton County, one in
Cobb County, and one in DeKalb County. Movant concedes that
his two Fulton County convictions qualify under the ACCA, but
claims that the Cobb and DeKalb County convictions do not.
Because only one of the convictions needs to qualify, the
Magistrate Judge reviewed the record of the Cobb County
conviction and concluded that the conviction unquestionably
qualified as an ACCA predicate offense because Movant, who
was represented by counsel at the time, pled guilty to
possessing cocaine with intent to distribute. In response to
Movant's argument that the facts did not support his Cobb
County conviction for possession with intent, the Magistrate
Judge correctly pointed out that Movant cannot challenge his
state court conviction in a § 2255 proceeding.
Magistrate Judge further concluded that Movant's trial
counsel was not ineffective for failing to raise an argument
regarding the constitutionality of the ACCA because the
argument was squarely foreclosed by Eleventh Circuit
precedent atthetime. See United States v. Rozier.
598 F.3ri 76R; 771 (11th Tir 7010) Finally, the
Magistrate Judge concluded that Movant is not entitled to
default judgment because the Government was late in filing
objections, Movant states that the exhibits attached to his
reply memorandum, [Doc. 132], demonstrate that his Cobb
County conviction was for simple possession of cocaine and
not possession with intent to distribute. This Court has
reviewed those documents and finds that they in no way
indicate that Movant was not convicted of possession with
intent. Indeed, one of those documents was the indictment
which clearly states that Movant was charged with unlawfully
possessing cocaine with the intent to distribute. As
established by the Government, Movant pled guilty to that
charge. The remainder of Movant's objections, which are
merely restatements of the arguments he made in his §
2255 motion and his reply memorandum, were correctly
addressed by the Magistrate Judge.
after a careful review of the record in light of Movant's
objections, this Court holds that the Magistrate Judge's
findings and conclusions are correct. As such, the R&R,
[Doc. 133], is hereby ADOPTED as the order
of this Court, and the Movant's § 2255 motion, [Doc.
118], his motion for summary judgment, [Doc. 125], and his
motion for default, [Doc. 130], are DENIED.
Movant's second motion for an extension to file his
objections, [Doc. 137], is GRANTED nunc
pro tunc. Movant's motion regarding this Court's
jurisdiction, [Doc. 140], is clearly frivolous and is
DENIED. Movant's remaining pending
motions, [Docs. 139, 141], are DENIED as
Clerk is DIRECTED to close Civil Action