Frank v. United States Of America
Filing
27
ORDER adopting 16 Report and Recommendations; overruling Petitioner's objections; granting 24 Motion for Leave to File; denying 25 Motion for Leave to File; denying 26 Motion for Leave to File; granting 5 Motion to Dismiss; denying 6 Motion for Leave to File; denying 8 Motion for Leave to File; denying 11 Motion for Leave to File; denying 14 Motion for Leave to File; denying COA in this case; directing the Clerk to enter final judgment in favor of Respondent; dismissing this instant § 2255 action; and closing this case. Signed by Judge Dudley H. Bowen on 02/07/2012. (thb)
IN THE UNITED STATES DISTRICT COT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
i'h 57
CLERKQ[
S .00 1 S)T
TOBIAS A. FRANK,
Petitioner,
V.
CV 111-018
(Formerly CR 103-045)
UNITED STATES OF AMERICA,
Respondent.
ORDER
After a careful, de novo review of the file, the Court concurs with the Magistrate
Judge's Report and Recommendation ("R&R"), to which objections have been filed (doe.
nos. 23, 24)) In the R&R, the Magistrate Judge recommended granting Respondent's
motion to dismiss Petitioner's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct
his sentence. (Doe. no. 16.) The Magistrate Judge also recommended that several motions
to amend filed by Petitioner be denied. (ç i4)
As an initial matter, the Court notes that following his first set of objections,
Petitioner filed three motions to supplement his objections.' (Doc. nos. 24,25,26.) The first
of these motions was filed within the extended time limit for objecting to the R&R;
therefore, that motion is GRANTED. (Doc. no. 24.) As to the latter two motions, they were
'Petitioner requested, and was granted, an extension of time in which to object to the
R&R. (Doe. nos. 21, 22.)
'The additional objections are set forth in the same filings as the motions to
supplement.
filed well after the extended objection deadline, and Petitioner has provided no excuse for
their tardiness; as a result, those motions are DENIED.3 (Doe. nos 25, 26.)
Taking all of Petitioner's timely objections into consideration, the Court finds that
he has failed to provide any reason to depart from the conclusions in the R&R. Petitioner
challenges the Magistrate Judge's determination that the collateral attack waiver in his plea
agreement was knowing and voluntary; according to Petitioner, he repeatedly told his trial
counsel that he wanted to preserve his right to appeal and collaterally attack his sentence, but
his trial counsel nevertheless proceeded with the plea agreement. (See doe. no. 23, pp. 4-5;
doe. no. 24, p. 2.) Notably, however, in the written plea agreement signed by Petitioner, he
"expressly waive[d] any and all rights to collateral post-conviction attack of the sentence
imposed." United States v. Frank, CR 103-045, doe. no. 97, p. 4 (S.D. Ga. Mar. 9, 2004)
(hereinafter "CR 103-045"). Moreover, during the Rule 11 hearing, Petitioner was explicitly
informed by the Court that he had "waived any right to make any collateral post-conviction
attack or habeas corpus attack on [his sentence]." Iii., doe. no. 120, pp. 15-16. At the same
hearing, the Court summarized and explained the terms of the plea agreement, and Petitioner
acknowledged that he understood and agreed with the terms of the plea agreement as
explained to him by the Court. i4 at 17-18. In short, the record before the Court
demonstrates that the collateral attack waiver was knowing and voluntary, and Petitioner's
self-serving allegations to the contrary are unavailing. See Blackledge v. Allison, 431 U.S.
63, 74(1977) (noting that "solemn declarations in open court [at a guilty plea hearing] carry
3 1n any event, consideration of these untimely supplemental objections would make
no difference in the Court's ruling, as they are largely duplicative of arguments asserted in
the timely objections and are without merit.
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a strong presumption of verity" and "constitute a formidable barrier in any subsequent
collateral proceedings")
Petitioner also reasserts in his objections that he is "actually innocent" of being a
career offender and that the Court's application of the career offender enhancement resulted
in a fundamental miscarriage ofjustice. (Lee doe. no. 23, pp. 5-8; doe. no. 24, pp. 4-5.) The
Court rejects this contention. As explained in the R&R (see doe. no. 16, pp. 17-18),
Eleventh Circuit case law forecloses application of the actual innocence exception in the
context of claims of legal error at sentencing. McKa y v. United States, 657 F. 3d 1190, 1200
(11th Cir, 2011) ("[T]he actual innocence exception does not apply to [petitioner's] claim
that he was erroneously sentenced as a career offender."); see also Gilbert v. United States,
640 F.3d 1293, 1320 (11th Cir. 2011) (en banc).
Petitioner's remaining objections are likewise without merit and do not warrant
further discussion. Asa result, Petitioner's objections are OVERRULED. Accordingly, the
Report and Recommendation of the Magistrate Judge is ADOPTED as the opinion of the
Court. Therefore, Respondent's motion to dismiss is GRANTED (doc. no. 5), and
Petitioner's motions to amend are DENIED (doe. nos. 6, 8, 11, 14).
Furthermore, a federal prisoner must obtain a certificate of appealability ("COA")
before appealing the denial of his motion to vacate. This Court "must issue or deny a
certificate of appealability when it enters a final order adverse to the applicant." Rule 11(a)
to the Rules Governing Section 2255 Proceedings. This Court should grant a COA only if
the prisoner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C.
§ 2253(c)(2). For the reasons set forth in the Report and Recommendation, and in
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consideration of the standards enunciated in Slack v. McDaniel, 529 U.S. 473, 482-84
(2000), Petitioner has failed to make the requisite showing. Accordingly, a COA is
DENIED in this case.' Moreover, because there are no non-frivolous issues to raise on
appeal, an appeal would not be taken in good faith. Accordingly, Petitioner is not entitled
to appeal in forma pauperis. S ee 28 U.S.C. § 1915(a)(3).
Upon the foregoing, a final judgment shall be ENTERED in favor of Respondent,
and the instant § 2255 action shall be DISMISSED and CLOSED.
SO ORDERED this
day of February, 2012, at Augusta, Georgia.
UNITED STATES DISTRICT
4"[f the court denies a certificate, a party may not appeal the denial but may seek a
certificate from the court of appeals under Federal Rule of Appellate Procedure 22." Rule
11(a) to the Rules Governing Section 2255 Proceedings.
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