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Otoupal v. United States

United States District Court, N.D. Georgia, Newnan Division

October 10, 2019

BRANDEN OTOUPAL, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          TIMOTHY C. BATTEN, SR. UNITED STATES DISTRICT JUDGE

         This case comes before the Court on Magistrate Judge Russell G. Vineyard's Report and Recommendation (the “R&R”) [73], which recommends denying Movant Branden Otoupal's pro se motion [47] to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Otoupal has filed objections [75] to the R&R.

         I. Legal Standard on Review of a Magistrate Judge's R&R

         A 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)).[1]

         “Parties 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.

         The 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)).

         After 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).

         II. Objections to the R&R

         Otoupal 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 denied.

         A. Ineffective Assistance of Counsel

         The 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 search warrant.

         Otoupal 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.

         The 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).

         The 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 ...


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