Summary
finding no prejudice assuming petitioner's counsel did not explain the 3553 factors if the petitioner had no substantive objection to the court's 3553 analysis
Summary of this case from United States v. ListerOpinion
Criminal Case No. 5:10-cr-78-JMH-EBA
05-14-2015
UNITED STATES OF AMERICA, Plaintiff-Respondent, v. DEMARCUS HAMILTON JONES, Defendant-Petitioner.
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon the Report and Recommendation of Magistrate Judge Edward B. Atkins. [DE 784]. Said action was referred to the magistrate for the purpose of reviewing the merit of Defendant Jones' Motion to Vacate, Set Aside, or Correct His Sentence pursuant to 28 U.S.C. § 2255, [DE 669], to which the United States filed a Response, stating its objections thereto. [DE 716]. Defendant filed a Reply in further support of his Motion, [DE 736].
In his Report and Recommendation, the magistrate judge concludes that Defendant's claims relating to the ineffective assistance of counsel during the plea process are without merit. Similarly, the magistrate determines that Defendant's claim of ineffective assistance of counsel for his counsel's failure to raise challenges regarding Defendant's prior convictions at various stages of the case should be rejected. Therefore, the magistrate judge recommends that Defendant's motion to vacate be denied.
The magistrate judge's Report and Recommendation, [DE 784], was filed on April 8, 2015. It advised Defendant that objections to the Report and Recommendation were due within fourteen days or further appeal would be waived. That time has now expired, and Defendant has filed no objections.
Generally, "a judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations made by the magistrate judge." 28 U.S.C. § 636. However, when the petitioner fails to file any objections to the Report and Recommendation, as in the case sub judice, "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard." Thomas v. Arn, 474 U.S. 140, 150 (1985). Consequently and in the absence of any objections from Defendant Jones, this Court adopts the well-articulated and detailed reasoning set forth in the Report and Recommendation as its own.
Further, no certificate of appealability shall issue in this matter. "A certificate of appealability may issue .... only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In order for a certificate to issue, Defendant must be able to show that reasonable jurists could find in his favor, and the "question is the debatability of the underlying federal constitutional claim, not the resolution of that debate." Miller-El v. Cockrell, 537 U.S. 322, 325 (2003). Having carefully considered the matter, this Court concludes that no certificate should issue as Jones cannot make a substantial showing of the denial of a constitutional right.
Accordingly, IT IS ORDERED:
(1) that the Report and Recommendation of Magistrate Judge Edward B. Atkins, [DE 784] is ACCEPTED and ADOPTED;
(2) that Jones' Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255, [DE 669], is DENIED;
(3) that no certificate of appealability will issue.
This the 14th day of May, 2015.
Signed By:
Joseph M. Hood
Senior U.S. District Judge