Filed: Sep. 05, 2015
Latest Update: Sep. 05, 2015
Summary: ORDER M. CASEY RODGERS , Chief District Judge . This case is before the Court for consideration of Defendant Taurean Proch's objections (Doc. 122) to the Magistrate Judge's Report and Recommendation ("R&R") (Doc. 116) that recommends denial of Proch's second amended motion to vacate, set aside, or correct his sentence filed under 28 U.S.C. 2255. Proch has identified nine grounds for 2255 relief. The R&R recommends denying relief on those grounds. The R&R also recommends denying relief
Summary: ORDER M. CASEY RODGERS , Chief District Judge . This case is before the Court for consideration of Defendant Taurean Proch's objections (Doc. 122) to the Magistrate Judge's Report and Recommendation ("R&R") (Doc. 116) that recommends denial of Proch's second amended motion to vacate, set aside, or correct his sentence filed under 28 U.S.C. 2255. Proch has identified nine grounds for 2255 relief. The R&R recommends denying relief on those grounds. The R&R also recommends denying relief o..
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ORDER
M. CASEY RODGERS, Chief District Judge.
This case is before the Court for consideration of Defendant Taurean Proch's objections (Doc. 122) to the Magistrate Judge's Report and Recommendation ("R&R") (Doc. 116) that recommends denial of Proch's second amended motion to vacate, set aside, or correct his sentence filed under 28 U.S.C. § 2255. Proch has identified nine grounds for § 2255 relief. The R&R recommends denying relief on those grounds. The R&R also recommends denying relief on two "supplemental" grounds that were not included in Proch's second amended motion.1
The parties have been furnished a copy of the Report and Recommendation and have been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). The Court has reviewed the Report and Recommendation de novo and considered Proch's objections, which were the only objections filed. Having considered the Report and Recommendation, as well as Proch's objections, the Court concludes that the Report and Recommendation should be adopted.
The Court also addresses three contentions asserted for the first time in Proch's objections to the R&R, two of which deserve no more than the footnote accompanying this sentence, and the third of which no more than the balance of this paragraph.2 Proch's third of these three contentions is that the Supreme Court's recent decision in Johnson v. United States, ___U.S.___, 135 S.Ct. 2551 (2015), which struck down as unconstitutionally vague the ACCA's residual clause, 18 U.S.C. §924(e)(2)(B)(ii), should be applied retroactively to his sentence. The Eleventh Circuit has rejected this contention, holding that Johnson does not apply to cases on collateral review. In re Rivero, ___F.3d___, 2015 4747749, *1, *3 (11th Cir. 2015). Johnson does not apply to Proch's § 2255 petition and affords him no relief.
Accordingly, it is now ORDERED as follows:
1. The Magistrate Judge's Report and Recommendation is adopted and incorporated by reference in this order.
2. Proch's second motion to vacate, set aside, or correct sentence (Docs. 81, 82) is DENIED and DISMISSED.
3. Proch's constructive motion for leave to amend for a third time his § 2255 motion, which is on pages 2-6 of his objections to the Report and Recommendation (Doc. 122), is GRANTED. Having carefully considered those contentions, this third amended motion is DENIED and DISMISSED for the reasons stated in this order.
4. A certificate of appealability is DENIED.
DONE AND ORDERED
