United States District Court, N.D. Georgia, Atlanta Division
KIM A. EARLYCUTT, Movant,
UNITED STATES OF AMERICA, Respondent.
MARTIN MAY UNITED STATES DISTRICT JUDGE
before the Court is the Magistrate Judge's Report and
Recommendation (R&R) recommending that the pending 28
U.S.C. § 2255 motion to vacate be granted in part and
denied in part. [Doc. 95]. Both the Government and Movant
have filed objections in response to the R&R. [Doc. 97,
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
nova basis and any non-objected portion under a
"clearly erroneous" standard. "Parties fling
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, 84 7 F.2d 1536, 1548 (11th Cir. 1988).
R&R, the Magistrate Judge concludes that Movant's
Ground One claim that her trial counsel was ineffective for
failing to object to the $5, 222, 634.00 loss amount
attributed to her in the presentence report is unavailing
because (1) Movant had agreed to the loss amount in her plea
agreement, (2) and her assertion that her trial counsel
failed to properly investigate the matter was entirely
conclusory because Movant failed to explain what a
"proper" investigation would have revealed. The
Magistrate Judge next concluded that Movant's Ground Two
claim that this Court erred in departing upward in imposing
her sentence was simply wrong because this Court's
sentence was significantly below the guidelines calculation.
Finally, the Magistrate Judge concluded that, with respect to
her Ground Three, because it appears that Movant sought to
appeal her conviction and/or sentence, and her failure to do
so was apparently beyond her control, Movant is entitled to a
restoration of her appeal rights.
Government objects to the Magistrate Judge's statement
that there is no indication that Movant ever waived her
appeal rights because Movant waived her appeal rights as part
of her plea agreement. While the Government is correct, this
Court reads the Magistrate Judge's statement to mean that
she did nothing to waive the limited appeal rights that she
had left after her appeal waiver. In any event, the
Government does not object to the Magistrate Judge's
recommendation, and this Court agrees with the Magistrate
Judge that, given the circumstances, Movant is entitled to
the restoration of her appeal rights.
objections, Movant objects only to the Magistrate Judge's
conclusion regarding her claim that trial counsel was
ineffective for failing to object to the loss amount.
According to Movant, (1) a lower loss amount would have
resulted in a shorter sentence, and, (2) she claims, her
trial counsel told her that she could challenge the loss
amount at a later time. In response to the first objection,
Movant is correct, but that does not demonstrate that the
Magistrate Judge erred in determining that she is not
entitled to relief. As to the second objection, Movant
expressly stipulated to the loss amount as a part of her plea
agreement and affirmed the loss amount during her plea
hearing, which overrides anything that anyone, including her
counsel, said to her.
on its review of the record in light of the objections, this
Court holds that the Magistrate Judge's findings and
conclusions are correct. Accordingly, the R&R, [Doc. 95],
is hereby ADOPTED as the order of this Court, and the §
2255 is GRANTED IN PART, but only with respect to her claim
that her counsel failed to protect her right to an appeal,
and a restoration of Movant's appeal rights is hereby
GRANTED. The § 2255 motion is DENIED with respect to
Movant's other grounds for relief.
Court further agrees with the Magistrate Judge that, with
respect to her Grounds One and Two, Movant 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) with respect to those two claims.
According to the Eleventh Circuit,
[w]hen the district courts of this circuit conclude that an
out-of-time appeal in a criminal case is warranted as the
remedy in a § 2255 proceeding, they should effect that
remedy in the following way: (1) the criminal judgment from
which the out-of-time appeal is to be permitted should be
vacated; (2) the same sentence should then be reimposed; (3)
upon reimposition of that sentence, the defendant should be
advised of all the rights associated with an appeal from any
criminal sentence; and (4) the defendant should also be
advised that the time for filing a notice of appeal from that
re-imposed sentence is ten days, which is dictated by Rule
United States v . Phillips. 225 F.3d 1198, 1201
(11th Cir. 2000).
the judgment and sentence entered in this matter as to Kim
Earlycutt is hereby VACATED and REIMPOSED as of the date
hereof with credit fr all time served and any amounts that
may have been paid for restitution and/or special assessment.
is advised that:
(a) she has the right to an ...