Filed: Nov. 24, 2014
Latest Update: Nov. 24, 2014
Summary: ORDER CLARENCE COOPER, District Judge. This matter is before the Court on the Final Report and Recommendation (the "R&R") [Doc. No. 1541] issued by Magistrate Judge J. Clay Fuller on September 4, 2014. In the R&R, Magistrate Judge Fuller recommends that Movant Tam Tran Nguyen's 28 U.S.C. 2255 motion to vacate his sentence be denied. Movant has filed Objections to the R&R. (Doc. No. 1545). Under 28 U.S.C. 636(b)(1) and Federal Rule of Civil Procedure 72, the Court has conducted a de novo re
Summary: ORDER CLARENCE COOPER, District Judge. This matter is before the Court on the Final Report and Recommendation (the "R&R") [Doc. No. 1541] issued by Magistrate Judge J. Clay Fuller on September 4, 2014. In the R&R, Magistrate Judge Fuller recommends that Movant Tam Tran Nguyen's 28 U.S.C. 2255 motion to vacate his sentence be denied. Movant has filed Objections to the R&R. (Doc. No. 1545). Under 28 U.S.C. 636(b)(1) and Federal Rule of Civil Procedure 72, the Court has conducted a de novo rev..
More
ORDER
CLARENCE COOPER, District Judge.
This matter is before the Court on the Final Report and Recommendation (the "R&R") [Doc. No. 1541] issued by Magistrate Judge J. Clay Fuller on September 4, 2014. In the R&R, Magistrate Judge Fuller recommends that Movant Tam Tran Nguyen's 28 U.S.C. § 2255 motion to vacate his sentence be denied. Movant has filed Objections to the R&R. (Doc. No. 1545). Under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72, the Court has conducted a de novo review of those portions of the R&R to which Movant objects, and has reviewed the remainder of the R&R for plain error. See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983); see also United States v. Smith, 322 Fed. Appx. 876, 878 n.2 (11th Cir. 2009).
For the most part, Movant's objections consist of a review of the lengthy procedural history of this case, including a restatement of Movant's nine grounds for § 2255 relief (Doc. 1545 at 1-5), and general arguments about whether ineffective assistance of counsel is sufficient to excuse the procedural default of the substantive grounds for relief raised in his § 2255 motion (id. at 5-7, 9-11, 13-16). Movant raises specific objections regarding only grounds 1 and 3-4. (Id. at 8-9, 11-13).
With respect to the Magistrate Judge's recommended resolution of ground 1, Movant objects that "counsel fail[ed] to pursue the ambiguity in the jury instructions" and failed to object that "it is the jury who must unanimously agree on the predicates of the [RICO] offense." (Id. at 8). The Magistrate Judge's thorough and well-reasoned discussion of Movant's ground 1 claim, however, reveals that the claim is without merit, and the Court agrees with the Magistrate Judge's analysis. (See Doc. 1541 at 13-24). Movant's objections as to ground 1 of the § 2255 motion are overruled.
With respect to the Magistrate Judge's recommended resolution of grounds 3-4, Movant objects that "[a] proper investigation would have terminated th[e Hobbs Act] count (as written)," but "counsel failed to pursue the government on the fact the[y] constructively amended the indictment." (Doc. 1545 at 12-13). The Court finds no error in the Magistrate Judge's analysis of these grounds for relief (see Doc. 1541 at 32-35), and overrules Movant's objection in this regard as well.
The Court otherwise finds no error in the R&R;1 OVERRULES Movant's Objections [Doc. No. 1545]; ADOPTS the Magistrate Judge's Final Report and Recommendation [Doc. No. 1541) as the Order of this Court; DENIES Movant's 28 U.S.C. § 2255 motion to vacate his sentence [Doc. No. 1225]; and DENIES Movant a certificate of appealability.
SO ORDERED
