KATHERINE P. NELSON, Magistrate Judge.
Samuel Curry, Jr. ("Curry" or "Petitioner"), a federal prisoner proceeding pro se, has filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 85)
The United States has timely filed a response (Doc. 87) in opposition to Curry's § 2255 motion, to which Curry has not responded.
Having reviewed the parties' submissions in accordance with Rule 8(a) of the Rules Governing Section 2255 Proceedings, the undersigned finds that neither expansion of the record nor an evidentiary hearing is not warranted and
The undersigned further
On June 25, 2015, a federal grand jury indicted Curry for possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). After pleading not guilty to the charge, Curry proceeded to trial, where he was found guilty and sentenced to 84 months' imprisonment on February 16, 2016. The district court imposed this sentence after assessing both a four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm in connection with another felony and a two-level enhancement pursuant to § 3C1.1 for obstruction of justice.
Curry appealed his conviction and sentence raising three arguments. First, he claimed insufficient evidence to support the jury's finding that he constructively possessed the firearm. Second, he claimed that the district court erred in assessing the § 2K2.1(b)(6) enhancement because: (1) the information contained in the Presentence Investigation Report ("PSR") was not presented or admitted during the trial, and (2) the district court used facts relating to a white powder seized from his vehicle to apply the enhancement even though the government agreed not to pursue inquiry into the substance at trial. Third, he claimed the district court erred in assessing the obstruction of justice enhancement simply because the jury discredited his testimony. On February 9, 2017, the Eleventh Circuit Court of Appeals affirmed the decision of the district court in an unpublished opinion (Docs. 82-83), and the United States Supreme Court denied writ of certiorari on June 12, 2017. (Doc. 84).
Curry timely filed the instant petition, a Motion to Vacate, Set Aside, or Correct Sentence (Doc. 85), pursuant to 28 U.S.C. § 2255, on September 19, 2017,
Title 28 U.S.C. § 2255 "permits a federal prisoner to bring a collateral challenge by moving the sentencing court to vacate, set aside, or correct the sentence." Winthrop-Redin v. United States, 767 F.3d 1210, 1215-16 (11th Cir. 2014). Specifically, § 2255 provides:
28 U.S.C. § 2255(a)-(b).
"Once the defendant's chance to appeal has been waived or exhausted," a court is "entitled to presume he stands fairly and finally convicted, especially when, as here, he already has had a fair opportunity to present his federal claims to a federal forum." United States v. Frady, 456 U.S. 152, 164, 102 S.Ct. 1584, 71 L. Ed. 2d 816 (1982). "[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) (per curiam) (citing Frady, 456 U.S. at 165 (collecting cases)). "Because collateral review is not a substitute for a direct appeal, the general rules have developed that: (1) a defendant must assert all available claims on direct appeal, and (2) relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice." Id. at 1232 (internal citations, quotations, and footnote omitted).
Winthrop-Redin, 767 F.3d at 1216 (footnote omitted). Accord, e.g., Diveroli v. United States, 803 F.3d 1258, 1263 (11th Cir. 2015). The Court must "liberally construe pro se filings, including pro se applications for relief pursuant to § 2255." Winthrop-Redin, 767 F.3d at 1215.
The Sixth Amendment gives criminal defendants the right to effective assistance of counsel. U.S. CONST., amend. VI; Strickland v. Washington, 466 U.S. 668, 684-86, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984). "To establish an ineffective assistance of counsel claim, a defendant must show that (1) `counsel's representation fell below an objective standard of reasonableness' and (2) that such failure prejudiced him in that `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" United States v. Pease, 240 F.3d 938, 941 (11th Cir. 2001) (per curiam) (quoting Strickland, 466 U.S. at 687-88, 694). "`Conclusory allegations of ineffective assistance are insufficient.'" Wilson v. United States, 962 F.2d 996, 998 (11th Cir. 1992) (per curiam) (quoting United States v. Lawson, 947 F.2d 849, 853 (7th Cir. 1991)). "Because both parts of the test must be satisfied in order to show a violation of the Sixth Amendment, the court need not address the performance prong if the defendant cannot meet the prejudice prong, or vice versa." Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (citation omitted). See also Osley v. United States, 751 F.3d 1214, 1222 (11th Cir. 2014) ("A habeas petitioner claiming ineffective assistance of counsel must carry his burden on both Strickland prongs, and a court need not address both prongs if the defendant has made an insufficient showing on one.").
In evaluating the first, or "performance," prong of Strickland, "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. Because retrospective evaluation of a lawyer's performance can be difficult, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that . . . the challenged action might be considered sound trial strategy." Id. (internal quotations omitted). A petitioner must identify specific acts or omissions that were not the result of reasonable professional judgment, and a court should deem these acts or omissions deficient only if they "were outside the wide range of professionally competent assistance." Id. at 690. Simply put, the deference afforded an attorney's decision is great and the bar for proving a Sixth Amendment violation is high. In light of the "strong presumption in favor of competence," we have held that in order to prove deficient performance, "a petitioner must establish that no competent counsel would have taken the action that his counsel did take." Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc).
Brownlee v. Haley, 306 F.3d 1043, 1059-60 (11th Cir. 2002).
"[F]ailure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255." Massaro v. United States, 538 U.S. 500, 509, 123 S.Ct. 1690, 155 L. Ed. 2d 714 (2003). Indeed, "in most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance." Id. at 504. See also United States v. Curbelo, 726 F.3d 1260, 1267 (11th Cir. 2013) ("An ineffective assistance claim should usually be raised in a motion under 28 U.S.C. § 2255." (citing United States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010))), cert. denied, 134 S.Ct. 962, 187 L. Ed. 2d 822 (2014).
As previously discussed, Curry raises four ineffective assistance of counsel claims as grounds for relief. These claims are addressed in turn.
Petitioner Curry asserts that his trial counsel was ineffective for failing to investigate mitigating evidence, specifically the dashboard camcorder video from the arresting officer's patrol car, and for failing to move to suppress the firearm discovered during Curry's arrest. In this Circuit, it is clear that "when a lawyer fails to conduct a substantial investigation into any of his clients' plausible lines of defense, the lawyer has failed to render effective assistance of counsel." House v. Balkcom, 725 F.2d 608, 617-18 (11th Cir.), cert. denied, 469 U.S. 870, 105 S.Ct. 218, 83 L. Ed. 2d 148 (1984); Goodwin v. Balkcom, 684 F.2d 794, 805 (11th Cir. 1982) (Failure to investigate evidence that will be helpful to the defense has been determined to be an indication of ineffective assistance of counsel.). However, an ineffective assistance of counsel claim is examined under the "totality of the circumstances," House, supra, 725 F.2d at 615, with Petitioner bearing the burden of showing that his attorney's performance "fell below an objective standard of reasonableness and alleging with specificity what the investigation would have revealed and how it would have benefitted him. United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989).
According to Curry:
(Id.). Curry, however, provides no evidence that a "dashcam" video actually exists or existed nor does he detail factually what the video would have shown. Curry further fails to articulate how the video evidence would have impeached the testimony of the officer(s) or how it would have proven his innocence. Likewise, Curry presents no factual or legal grounds upon which suppression of the gun would have been granted. All in all, Curry's claim is merely conclusory in nature.
While courts liberally construe pro se filings, the court cannot make assumptions as to the intent of a petitioner's claims raised or advocate on a petitioner's behalf. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L. Ed. 2d 652 (1972); Walker v. Dugger, 860 F.2d 1010, 1011 (11th Cir. 1988) (conclusory claims will not be treated as properly raised). "[V]ague, conclusory, speculative, or unsupported claims cannot support an ineffective assistance of counsel claim. Id. (citing Tejada v. Duggar, 941 F.2d 1551, 1559 (11th Cir. 1991); see also, Saunders v. United States, 278 F. App'x 976, 979 (11th Cir. 2008) (Petitioner must allege "reasonably specific, non-conclusory facts with respect to his claim such that there was a reasonable probability sufficient to undermine confidence in the outcome."). Petitioner Curry has failed to present evidence to show that further investigation by trial counsel would have revealed material evidence such that a reasonable probability exists that the outcome of the proceeding would have been different but for his trial counsel's failure to request the dashcam video from the patrol car. Curry has also failed to provide any factual basis or legal argument as to why trial counsel should have moved to suppress the weapon. Thus, the undersigned can find no prejudice to the outcome of Curry's trial. Consequently, there is no need to address whether trial counsel's performance was deficient, and Curry's ineffective assistance Claim One fails.
The record before the court reveals that Curry received a two-point sentencing enhancement pursuant to § 3C1.1, after finding that Curry offered testimony at trial which was not credible and was offered only "to try and dissuade the jury from convicting him." (Doc. 81 at 13-14).
The Sentencing Guidelines state:
U.S. SENTENCING GUIDELINES MANUAL § 3C1.1 (2016). In the instant petition, Curry asserts that the trial court failed to make the requisite "generalized findings" for assessing the enhancement; thus, trial counsel was ineffective for failing to object to the same. (Doc. 85-1 at 4). The undersigned, however, finds this claim to be without merit.
First, the record belies Curry's claim that counsel failed to object to the obstruction enhancement, showing instead that trial counsel filed a written objection to the Presentence Investigation Report (Doc. 52) and orally objected at the sentencing hearing.
According to the commentary to § 3C1.1, committing perjury is an example of the conduct to which the enhancement applies, as is "providing materially false information to a judge or magistrate judge." U.S. SENTENCING GUIDELINES MANUAL § 3C1.1 cmt. n.4(B), (F) (2016). The commentary further states that "material" evidence is defined as "fact, statement, or information that, if believed, would tend to influence or affect the issue under determination." § 3C1.1 cmt. n.6. While holding "that the threshold for materiality under the commentary to § 3C1.1 is conspicuously low," United States v. Odenina, 980 F.2d 705, 707 (11th Cir. 1993) (quotation omitted), the Eleventh Circuit has stated that "district court[s] should make specific findings as to each alleged instance of obstruction by identifying the materially false statements individually" when applying the enhancement. United States v. Singh, 291 F.3d 756, 763 (11th Cir. 2002) (quotations and alterations omitted). However, general findings may suffice if the findings include the necessary elements for a perjury finding, that is testimony which is: (1) made under oath, (2) false, (3) material, and (4) "given with the willful intent to provide false testimony and not as a result of mistake, confusion, or faulty memory." Id. at n.4. Notably, "[w]here the district court has to make a particularized assessment of the defendant's credibility or demeanor in determining whether U.S.S.G. § 3C1.1 applies, such as when applying the obstruction-of-justice enhancement for perjury, . . . special deference [is accorded] to the district court's credibility determinations. . . ." United States v. Banks, 347 F.3d 1266, 1269 (11th Cir. 2003).
In reviewing the assessment of Curry's enhancement on appeal, the Eleventh Circuit determined:
(Doc. 82 at 14). A reading of the trial transcript reveals that Curry's testimony significantly differed not only from the arresting officers' testimony, as discussed by the appellate court, but also from his codefendant's testimony regarding the order of events and length of time period they were in the patrol car(s). Additionally, the district court stated at the sentencing hearing, in overruling the § 3C1.1 objection:
(Doc. 81 at 13-14). By discrediting Curry's under oath testimony regarding material facts of the case and qualifying that the testimony was provided for the purpose to dissuade the jury, the district court established the needed elements of perjury and maintained the findings were based on the sufficiency of the record. As such, no additional factual findings are necessary. See United States v. Tran, 171 F. App'x 758 (11th Cir. 2006) (Detailed findings were not necessary to assess § 3C1.1 enhancement given the sufficiency of the record). Furthermore, the district court stated upon sentencing Curry:
(Doc. 81 at 16). "[W]hen a district court expressly states that it would have imposed the same sentence even without the sentencing enhancement, it is unnecessary for [courts] to review the enhancement issue." United States v. Perez, 373 F. App'x 34 (11th Cir. 2010) (citing United States v. Keene, 470F.3d 1347, 1348-49 (11th Cir. 2006) (Explaining that "a decision either way will not affect the outcome of this case", so there can be no prejudice.). For these reasons, Curry has failed to allege facts indicating that his desired objection to § 3C1.1's enhancement had any merit, and "[a] lawyer cannot be deficient for failing to raise a meritless claim. . ." Freeman v. Atty. Gen., 536 F.3d 1225, 1233 (11th Cir. 2008). See also, e.g., Brownlee, 306 F.3d at 1066 ("Counsel was not ineffective for failing to raise these issues because they clearly lack merit."); United States v. Bridgewater, No. 3:07CR58/MCR/CJK, 2014 U.S. Dist. LEXIS 122085, 2014 WL 4354425, at *5 (N.D. Fla. Sept. 2, 2014) ("It is []well-established that counsel is not ineffective for failing to preserve or argue a meritless claim." (collecting cases)). Accordingly, Curry has failed to show that trial counsel performed deficiently under Strickland, and his § 2255 motion is due to be denied.
Petitioner Curry next argues in his Motion to Vacate Set Aside, or Correct Sentence under 28 U.S.C. § 2255 that trial counsel was ineffective for failing to argue that he did not possess the firearm because the gun actually belonged to the co-defendant, James Smith. (Doc. 85-1 at 5). Curry contends "[e]vidence that the firearm was [Curry's] only rests on the officer's conclusion, which is an assumption." (Id.). This argument is without merit.
In his direct appeal of this case, Curry likewise argued that the evidence was insufficient to sustain his conviction of possession of a firearm, and the Eleventh Circuit disagreed, and stated as follows:
(Doc. 82 at 9).
The appellate court then recited the evidence supporting Curry's conviction as including:
(Doc. 82 at 9-10).
Under the "law of the case" doctrine, both the district court and the appellate court are "bound by findings of fact and conclusions of law" that were "made in a prior appeal of the same case unless one of the following exceptions applies: (1) new evidence is presented, (2) there has been an intervening change in controlling law, or (3) the prior appellate decision is clearly erroneous and would result in manifest injustice if implemented." United States v. Lynn, 385 F. App'x 962, 965-66 (11th Cir. 2010) (unpublished); accord United States v. Howard, 372 F. App'x 978, 979 (11th Cir. 2010) (unpublished). "The doctrine operates to preclude courts from revisiting issues that were decided explicitly or by necessary implication in a prior appeal." Thomas v. United States, 572 F.3d 1300, 1303 (11th Cir. 2009) (citations omitted); see also United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000) ("[O]nce a matter has been decided adversely to a defendant on direct appeal it cannot be re-litigated in a collateral attack under section 2255.") (internal brackets, quotation marks and citation omitted); see also Rozier v. United States, 701 F.3d 681, 684 (11th Cir. 2012) ("At least where there has been no intervening change in controlling law, a claim or issue that was decided against a defendant on direct appeal may not be the basis for relief in a § 2255 proceeding.").
In this case, the facts related to Curry's possession of the firearm and the Court's conclusion related to the sufficiency of the evidence to support Curry's conviction have been established by the appellate court and will not be revisited by this Court on habeas. See United States v. Hinton, 2010 U.S. Dist. LEXIS 129741, 2010 WL 5071050, *6 (S.D. Ala. 2010) ("Consequently, any claim by [Petitioner] regarding the sufficiency of the evidence is barred from reconsideration, even if couched as a claim of ineffective assistance of counsel."). Thus, to the extent that Curry attempts to now argue, via an ineffective assistance of counsel claim, that the evidence related to his possession of the firearm was insufficient to support his conviction, that argument is foreclosed by the law of the case doctrine.
Furthermore, even if not precluded by this doctrine, Curry's ineffective assistance of counsel claim fails for lack of evidence that Petitioner was prejudiced by counsel's alleged deficiency. Assuming that counsel had argued that the firearm was actually Smith's, there was ample evidence, presented to the jury, that Curry had possession of the firearm, as recited by the appellate court in its memorandum opinion. It is clear from the trial transcript that the jury was offered the testimony of the arresting officers as well as Curry and Smith. Curry and Smith testified that they were seated in the back of Officer Kelley's patrol car together for an undisclosed period of time.
Curry challenges that the Hi-Point model JCP, .40 caliber pistol, serial number X780793, for which he was convicted of possessing in violation of Title 18, United States Code, Section 922(g)(1) fails to fall within the definition of a "firearm" under the National Firearms Act and that trial counsel was, therefore, ineffective for failing to object to the court's jurisdiction regarding the charge. (Doc. 85-1 at 6; Doc. 1).
The National Firearms Act ("the Act") was originally enacted by Congress as an exercise of its taxing authority, but the Act has an underlying purpose to curtail the transaction of firearms which are used in criminal activities. 26 U.S.C. §§ 5801 et seq.; Gun Control Act of 1968, H.R. 17735, 90th Cong. (2nd Sess. 1968). Keeping with the purpose of the statute, the Act regulates only those weapons most characteristically used in the commission of crimes. Accordingly, the Act defines a firearm as:
26 U.S.C. § 5845(a).
Curry's argument lacks merit in that he was not convicted pursuant to the National Firearms Act but rather in violation of 18 U.S.C. § 922(g)(1), which defines a firearm as "any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive. . . ." 18 U.S.C. 921(a)(3). "The Title 18 definition is lucidly inclusive of all the common weapons of the sportsman and householder." United States v. Schofer, 310 F.Supp. 1292, *1296 (E.D. N.Y 1969). No doubt, a handgun qualifies as a firearm under § 922(g), and trial counsel was not ineffective for failing to raise a meritless argument. Brownlee v. Haley, 306 F.3d 1043, 1066 (11th Cir. 2002) ("Counsel was not ineffective for failing to raise these issues because they clearly lack merit."). Consequently, Curry is not entitled to relief on Claim Four.
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, the undersigned
Where the district court "has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L. Ed. 2d 542 (2000). See also Miller-El, 537 U.S. at 336 ("Under the controlling standard, a petitioner must show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." (citations omitted and punctuation modified)).). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack, 529 U.S. at 484.
"A prisoner seeking a COA must prove something more than the absence of frivolity or the existence of mere good faith on his or her part." Miller-El, 537 U.S. at 338 (quotations omitted). The undersigned finds that reasonable jurists could not debate whether Mitchell's § 2255 motion to vacate should be resolved in a different manner or that any of the issues presented is adequate to deserve encouragement to proceed further. Insofar as the undersigned has recommended dismissal of certain claims as procedurally barred, the undersigned also finds that jurists of reason would not find such a procedural ruling debatable. Accordingly, Mitchell is not entitled to a Certificate of Appealability on any of his claims.
Rule 11(a) further provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." If there is an objection to this recommendation by petitioner, he may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation. See, e.g., Brightwell v. Patterson, No. CA 11-0165-WS-C, 2011 U.S. Dist. LEXIS 54587, 2011 WL 1930676, at *6 (S.D. Ala. Apr. 11, 2011), report & recommendation adopted, 2011 U.S. Dist. LEXIS 54465, 2011 WL 1930662 (S.D. Ala. May 19, 2011); Griffin v. DeRosa, No. 3:10cv342/RV/MD, 2010 U.S. Dist. LEXIS 106920, 2010 WL 3943702, at *4 (N.D. Fla. Sep. 20, 2010) (providing for same procedure), report & recommendation adopted sub nom. Griffin v. Butterworth, 2010 U.S. Dist. LEXIS 106921, 2010 W: 3943699 (N.D. Oct. 5, 2010).
"An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." 28 U.S.C.A. § 1915(a)(3). A district court's finding "that an appeal would not be in good faith because no certificate of appealability had been issued . . . is not enough to explain why the appeal on the merits would not be in good faith, because the standard governing the issuance of a certificate of appealability is not the same as the standard for determining whether an appeal is in good faith. It is more demanding . . . [T]o determine that an appeal is in good faith, a court need only find that a reasonable person could suppose that the appeal has some merit." Walker v. O'Brien, 216 F.3d 626, 631-32 (7th Cir. 2000). See also Weaver v. Patterson, Civ. A. No. 11-00152-WS-N, 2012 U.S. Dist. LEXIS 92119, 2012 WL 2568218, at *7 (S.D. Ala. June 19, 2012) (Nelson, M.J.), report and recommendation adopted, Civ. A. No. 11-00152-WS-N, 2012 U.S. Dist. LEXIS 92115, 2012 WL 2568093 (S.D. Ala. July 3, 2012) (Steele, C.J.) ("An appeal may not be taken in forma pauperis if the trial court certifies in writing that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3); see Fed. R. App. P. 24(a)(3)(A); Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000) (concluding that `good faith' is `an objective concept' and that `not taken in good faith' is `a synonym for frivolous'); DeSantis v. United Techs. Corp., 15 F.Supp.2d 1285, 1288-89 (M.D. Fla. 1998) (stating that good faith `must be judged by an objective, not a subjective, standard' and that an appellant `demonstrates good faith when he seeks appellate review of any issue that is not frivolous'). An appeal filed in forma pauperis is frivolous if `it appears that the Plaintiff has little to no chance of success,' meaning that the `factual allegations are clearly baseless or that the legal theories are indisputably meritless.' Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993)."). But see, e.g., United States v. McCray, No. 4:07CR20-RH, 2012 U.S. Dist. LEXIS 48199, 2012 WL 1155471, at *2 (N.D. Fla. Apr. 5, 2012) ("Because the defendant has not obtained—and is not entitled to—a certificate of appealability, any appeal by the defendant will not be taken in good faith. I certify under Federal Rule of Appellate Procedure 24(a) that any appeal will not be taken in good faith and that the defendant is not otherwise entitled to proceed in forma pauperis on appeal.").
Considering the foregoing analysis, the undersigned recommends the Court certify that any appeal by Petitioner in this action would be without merit and therefore not taken in good faith and, accordingly, find that Petitioner is not entitled to appeal in forma pauperis.
In accordance with the foregoing analysis, it is
It is further recommended that Petitioner's Motion for Summary Judgment (Doc. 89), brought pursuant to Rule 56 of the Federal Rules of Civil Procedure be
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); S.D. Ala. GenLR 72(c) (effective Aug. 1, 2015). The parties should note that under Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice." 11th Cir. R. 3-1. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.
(Doc. 81 at 10).
According to Smith, Smith was seated in Curry's vehicle while Curry was frisked and placed in Officer Kelley's patrol car. (Id.). Then, Officer Roberson was assisted by Officer Kelley in frisking him and placing him in the back of Kelley's patrol car. (Id.). Smith claims he was subsequently removed from Officer Kelley's patrol car and placed in Officer Roberson's patrol car, which was parked behind Kelley's. (Id. at 103). Smith stated that when Officer Roberson went back to close Kelley's patrol car door, Smith saw Officer Roberson reach down inside the pocket of the door and pull something out. (Id.).
Curry, on the other hand, testified that he and Smith were placed in the back of Officer Kelley's patrol car together before Officer Roberson arrived at the scene and while the officers searched Curry's vehicle. (Id. at 158-159). Curry claims when Officer Roberson opened Officer Kelley's patrol car door to let Smith out and escort Smith to Officer Roberson's patrol car, Officer Roberson noticed a gun pushed between the seat. (Id. at 159).
