Filed: Aug. 10, 2016
Latest Update: Aug. 10, 2016
Summary: REPORT AND RECOMMENDATION G.R. SMITH , Magistrate Judge . After pleading guilty to conspiracy to commit mail fraud, wire fraud, and money laundering, (doc. 10 (plea agreement), 1 doc. 13 (judgment)), Raymond Hargrove moves under 28 U.S.C. 2255 to vacate his sentence. 2 Doc. 16. Review of the parties' briefing shows that his motion must be denied. After the Court sentenced him to 48 months' imprisonment (doc. 13), Hargrove never appealed. And "[a] 2255 motion, it must be remembered,
Summary: REPORT AND RECOMMENDATION G.R. SMITH , Magistrate Judge . After pleading guilty to conspiracy to commit mail fraud, wire fraud, and money laundering, (doc. 10 (plea agreement), 1 doc. 13 (judgment)), Raymond Hargrove moves under 28 U.S.C. 2255 to vacate his sentence. 2 Doc. 16. Review of the parties' briefing shows that his motion must be denied. After the Court sentenced him to 48 months' imprisonment (doc. 13), Hargrove never appealed. And "[a] 2255 motion, it must be remembered, m..
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REPORT AND RECOMMENDATION
G.R. SMITH, Magistrate Judge.
After pleading guilty to conspiracy to commit mail fraud, wire fraud, and money laundering, (doc. 10 (plea agreement),1 doc. 13 (judgment)), Raymond Hargrove moves under 28 U.S.C. § 2255 to vacate his sentence.2 Doc. 16. Review of the parties' briefing shows that his motion must be denied.
After the Court sentenced him to 48 months' imprisonment (doc. 13), Hargrove never appealed. And "[a] § 2255 motion, it must be remembered, may not be used as a `surrogate' for a missed direct appeal." Jones v. United States, 2015 WL 464243 at * 1 (S.D. Ga. Jan. 28, 2015) (citing Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004)); see Stone v. Powell, 428 U.S. 465, 478 n. 10 (1976) (28 U.S.C. § 2255 will not be allowed to do service for an appeal). "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."3 McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011) (footnote added). A procedural default may be overcome if the movant can show "cause excusing his failure to raise the issue previously and prejudice from the alleged error." United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000). Ineffective assistance of counsel (IAC) "may satisfy the cause exception to the procedural bar," though such a claim "must have merit" to qualify. Id. at 1344.
Hargrove nominally pleads IAC to overcome his failure to appeal by claiming that counsel never advised him that he "had a right to raise any issues on appeal, or to appeal." See doc. 16 at 6. Although a failure to consult with a defendant regarding an appeal can constitute IAC, see Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000), Hargrove expressly instructed counsel not to file an appeal after being fully informed of his appellate rights. See doc. 14 ("Notice of Post-Conviction Consultation").4 His bare claim to the contrary5 now cannot overcome what he swore to be true shortly after sentencing. See, e.g., Eason v. United States, 2014 WL 4384652 at * 3 (S.D. Ga. Sept. 3, 2014). And with nothing to excuse his failure to appeal, Hargrove's claims are procedurally defaulted. See Nyhuis, 211 F.3d at 1344.
Accordingly, Raymond Hargrove's § 2255 motion should be DENIED. Applying the Certificate of Appealability (COA) standards set forth in Brown v. United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009), the Court discerns no COA-worthy issues at this stage of the litigation, so no COA should issue either. 28 U.S.C. § 2253(c)(1); Rule 11(a) of the Rules Governing Habeas Corpus Cases Under 28 U.S.C. § 2255 ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.") (emphasis added). Any motion for leave to appeal in forma pauperis therefore is moot.
SO REPORTED AND RECOMMENDED.
