Nelson v. United States of America

Filing 10

ORDER overruling Petitioner's 9 Objections; adopting the 7 Magistrate Judge's Report and Recommendation as the opinion of the Court; denying without an evidentiary hearing Petitioner's motion filed pursuant to 28 U.S.C. § 22 55; denying a Certificate of Appealability; determining that the Petitioner is not entitled to appeal in forma pauperis; closing this civil action; and directing the Clerk to enter final judgment in favor of Respondent. Signed by Judge Dudley H. Bowen on 3/29/2017. (jah)

U.S. DISTRICT COURT
/N1"-|JSTA DIV.
IN THE UNITED STATES DISTRICT COURT

20nHAR29 PH 1^:06

FOR THE SOUTHERN DISTRICT OF GEORGIA

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(w rs

CLERK 1
AUGUSTA DIVISION

SO.OIST. OF GA.

ANDREW GARETH NELSON,
Petitioner,
CV 116-090

V.

(Formerly CR 113-032)
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. (Doc.
no. 9.)

Nothing in Petitioner's objections undermines the Magistrate Judge's

recommendation, and only one argument warrants further comment.

In his objections, Petitioner raises the novel argument that because he was sentenced
under both 18 U.S.C. § 2113 and 18 U.S.C. § 924(c), his sentence was invalid under the

Supreme Court's decision in Simpson v. United States. 435 U.S. 6 (1978). (Doc. no. 9, pp.
2-3.) However, Simpson is no longer good law. As the Eleventh Circuit summarized:
Section 942(c) [sic] was amended in response to the Supreme Court's
decisions in Simpson v. United States. 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70
(1978), and Busic v. United States. 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d
381 (1980). Simpson and Busic struck down section 924(c)'s application to
prosecutions in which the predicate offense already contained enhanced
sentences for firearm use. The 1984 amendment of section 924(c) was
designed, in part, to overturn those two Supreme Court decisions. S.Rep. No.
225, 98th Cong., 2d Sess, 312-314 reprinted in 1984 U.S.C.C.A.N. 3182,
3490-3492.

United States v. Moore. 43 F.3d 568, 574 n.4 (11th Cir. 1994); see also United States v.

Gonzales. 520 U.S. 1, 10 (1997)(noting 1984 amendments to § 924(c) eliminated problems
addressed in Simpson and Busic). Therefore, Petitioner argument is meritless and he was

validly sentenced under both 18 U.S.C. § 2113(a)&(d)and 18 U.S.C. §924(c)(l)(A)(ii).
Accordingly, the Court OVERRULES Petitioner's objections, ADOPTS the Report
and Recommendation of the Magistrate Judge as its opinion, and DENIES without an
evidentiary hearing Petitioner's motion filed pursuant to 28 U.S.C. § 2255.

Further, a federal prisoner must obtain a certificate of appealability ("CCA") 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 ofthe denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
For the reasons set forth in the Report and Recommendation, and in consideration of the
standards enunciated in Slack v. McDaniek 529 U.S. 473, 482-84 (2000), Petitioner has

failed to make the requisite showing. Accordingly, the Court DENIES a COA 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.
See 28 U.S.C. § 1915(a)(3).

'"If 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 Goveming Section 2255 Proceedings.

upon the foregoing, the Court CLOSES this civil action and DIRECTS the Clerk to
enter final judgment in favor of Respondent.
SO ORDERED this

.

.

2017, at Augusta, Georgia.

UNITED STATES DISTRICT JUDGE