United States District Court, N.D. Georgia, Newnan Division
TIMOTHY C. BATTEN, SR. UNITED STATES DISTRICT JUDGE
case comes before the Court on Magistrate Judge Russell G.
Vineyard's Report and Recommendation (the
“R&R”) , which recommends denying Movant
Branden Otoupal's pro se motion  to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255. Otoupal has filed objections  to the R&R.
Legal Standard on Review of a Magistrate Judge's
district judge has a duty to conduct a “careful and
complete” review of a magistrate judge's R&R.
Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir.
1982) (per curiam) (quoting Nettles v. Wainwright,
677 F.2d 404, 408 (5th Cir. Unit B 1982)). This review may
take different forms, however, depending on whether there are
objections to the R&R. A district judge must “make
a de novo determination of those portions of the [R&R] to
which objection is made.” 28 U.S.C. §
636(b)(1)(C); see also Jeffrey S. v. State Bd. of
Educ., 896 F.2d 507, 512 (11th Cir. 1990) (A judge must
“give fresh consideration to those issues to which
specific objection has been made by a party.”). Those
portions of the R&R to which no objection is made need
only be reviewed for clear error. Macort v. Prem,
Inc., 208 Fed.Appx. 781, 784 (11th Cir. 2006) (per
curiam) (quoting Diamond v. Colonial Life & Accident
Ins., 416 F.3d 310, 315 (4th Cir. 2005)).
filing objections must specifically identify those findings
objected to. Frivolous, conclusive or general objections need
not be considered by the district court.”
Nettles, 677 F.2d at 410 n.8. “This rule
facilitates the opportunity for district judges to spend more
time on matters actually contested and produces a result
compatible with the purposes of the Magistrates Act.”
Id. at 410.
district judge also has discretion to decline to consider
arguments that were not raised before the magistrate judge.
Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir.
2009). Indeed, a contrary rule “would effectively
nullify the magistrate judge's consideration of the
matter and would not help to relieve the workload of the
district court.” Id. (quoting United
States v. Howell, 231 F.3d 615, 622 (9th Cir. 2000)).
conducting a complete and careful review of the R&R, the
district judge “may accept, reject, or modify”
the magistrate judge's findings and recommendations. 28
U.S.C. § 636(b)(1)(C); Williams, 681 F.2d at
732. The district judge “may also receive further
evidence or recommit the matter to the magistrate judge with
instructions.” 28 U.S.C. § 636(b)(1)(C).
Objections to the R&R
objects to the R&R's findings that (1) his
counsel's failure to further investigate the Russian
government's capture of his IP address was reasonable;
(2) his counsel's failure to advise Otoupal to plea to
the possession count was reasonable; (3) Otoupal did not meet
his burden to show that the statements he made during his
plea colloquy were false; (4) the alleged failure of counsel
to explain Otoupal's right to confront his accuser was
cured by the district court; (5) Otoupal has not shown
prejudice because he has not identified an affirmative
defense that likely would have succeeded at trial; and (6)
the issuance of a certificate of appealability should be
Ineffective Assistance of Counsel
underlying issue in all of Otoupal's objections is the
Russian tip that led special agents to his door with a search
warrant. Otoupal alleges that trial counsel's failure to
investigate the Russian tip resulted in various forms of
ineffective assistance of counsel. Each claim appears to
follow one of two paths. The first is that counsel's
failure to investigate the origin of the Russian tip was
unreasonable. It is unclear from the objections exactly why
the alleged failure to investigate was unreasonable, but
Otoupal seems to believe that his lawyer should have argued
to suppress the search warrant, presumably on the basis that
the Russian tip was inadequate to provide probable cause. The
second path to ineffective assistance relates to the plea
deal. Otoupal suggests-without actually using the terms-that
his plea was somehow not knowing or voluntary because he did
not know about the Russian tip that led to the original
did not pursue a direct appeal, and “a collateral
challenge, such as a § 2255 motion, may not be a
surrogate for a direct appeal.” Lynn v. United
States, 365 F.3d 1225, 1232 (11th Cir. 2004).
“Under the procedural default rule, a defendant
generally must advance an available challenge to a criminal
conviction or sentence on direct appeal or else the defendant
is barred from presenting that claim in a § 2255
proceeding.” Id. at 1234. A defendant can
avoid a procedural bar only by establishing one of the two
exceptions to the procedural default rule. Id. Under
the first exception, a defendant must show cause for not
raising the claim of error on direct appeal and
actual prejudice resulting from the error. Id. Under
the second exception, a court may allow a defendant to
proceed with a § 2255 motion despite his failure to show
cause for procedural default if “a constitutional
violation has probably resulted in the conviction of one who
is actually innocent.” Id. at 1235-35 (quoting
Mills v. United States, 36 F.3d 1052, 1055 (11th
Cir. 1994)). Ineffective assistance of counsel claims,
however, are excepted from the procedural bar and the
cause-and-prejudice requirement. See Massaro v. United
States, 538 U.S. 500, 509 (2003). Accordingly, the Court
will analyze the ineffective assistance claims on the merits.
burden for a habeas corpus petitioner pursuing an ineffective
assistance claim is “a heavy one, ” and
“cases in which habeas petitioners can properly prevail
on the ground of ineffective assistance of counsel are few
and far between.” Rogers v. Zant, 13 F.3d 384,
386 (11th Cir. 1994). To prevail, a petitioner must show that
(1) his lawyer's performance was deficient, and (2) he
was prejudiced by the deficiency. Strickland v.
Washington, 466 U.S. 668, 687 (1984). A habeas
petitioner must carry his burden on both prongs, and “a
court need not address both prongs if the defendant has made
an insufficient showing on one.” Osley v. United
States, 751 F.3d 1214, 1222 (11th Cir. 2014).
performance prong entails a deferential review of
counsel's conduct. Means v. Sec'y, Dep't of
Corr., 433 Fed.Appx. 852, 855 (11th Cir. 2011).
“In assessing the reasonableness of counsel's
performance, courts must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance.” Id.
(quoting Reed v. Sec'y, Fla. Dep't. of
Corr., 593 F.3d 1217, 1240 (11th Cir. 2010)). The Sixth
Amendment “does not require criminal defense attorneys
to take a ‘nothing to lose' approach and
‘raise every available nonfrivolous
defense.'” Id. (quoting Knowles v.
Mirzayance, 556 U.S. 111, 122, 127 (2009)). In order to
prove deficient performance, Otoupal “must establish
that no competent counsel would have taken the action that
his counsel did take.” Brownlee v. Haley, 306
F.3d 1043, 1059 (11th Cir. 2002) (quoting Chandler v.
United States, 218 F.3d 1305, 1315 ...