Cleckler v. United States of America (INMATE 3)

Filing 29

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 27 Report and Recommendation and the 28 USC 2255 motion is DENIED; An appropriate judgment will be entered. Signed by Honorable William Keith Watkins on 5/29/2009. (wcl, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION E U G E N E L. CLECKLER, P e titio n e r, v. UNITED STATES OF AMERICA, R e s p o n d e n t. ) ) ) ) ) ) ) ) ) ORDER O n April 3, 2009, the Magistrate Judge filed a Recommendation (Doc. # 27) that P e ti t i o n e r ' s 28 U.S.C. § 2255 motion be denied. On April 8, 2009, Petitioner filed several o b je c tio n s to the Recommendation, all of which are due to be overruled. (Doc. # 28.) H a v in g conducted an independent and de novo review of the Recommendation and th e case as a whole, see 28 U.S.C. § 636(b)(1)(C), having presiding over the jury trial, and h a v in g previously reviewed the trial transcript, the court finds that most of the objections s im p ly restate the content of the Petition1 and that in any event, the Magistrate Judge has

C A S E NO. 2:08-CV-397-WKW

Petitioner suggests that the Magistrate Judge, in analyzing whether there was prejudice flowing from counsel's admitted failure to advise Petitioner of the consequences of testifying, incorrectly shifted the ground of inquiry from the constitutionality of his conviction to the issue of sentencing, using the length of his sentence as the sole benchmark. Petitioner is wrong in at least two respects. First, he conflates the prejudice analysis regarding the obstruction of justice claim with the prejudice inquiry regarding the failure to advise about testifying claim. Because in the view of this court and the Eleventh Circuit this is not a close case (and the Magistrate Judge agrees), Petitioner has failed to demonstrate a reasonable probability that the jury would have rejected the substantial evidence against him in the absence of his strong denials in his testimony. Second, he assumes too much in speculating what the sentence might have been in the absence of the enhancement. Post-Booker, the undersigned does not know the effect of a different sentencing landscape (not only the absence of the enhancement, but the unrefuted allegations of the government), and if the court cannot know, certainly the Petitioner is in no better position to postulate a sentencing result.

1

accurately and thoroughly addressed the reasons for the failure of the arguments of the P e titio n e r. Accordingly, it is ORDERED that the Recommendation is ADOPTED and the 2 8 U.S.C. § 2255 motion is DENIED. A n appropriate judgment will be entered. D O N E this 29th day of May, 2009. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

2