Chew v. United States of America
ORDER ADOPTING 2 REPORT AND RECOMMENDATION as the Court's opinion. Petitioner's 7 objections are overruled, and this action is Dismissed. The Clerk of Court is directed to close this case. No Certificate of Appealability should issue. Signed by Judge William T. Moore, Jr. on 11/17/2022. (gmh)
Case 4:20-cv-00142-WTM-CLR Document 8 Filed 11/17/22 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
TSADDIQ NDESHA CHEW,
CASE NO. CV420-142
UNITED STATES OF AMERICA,
Recommendation (Doc. 2), to which Petitioner has filed objections
(Doc. 7).i After a careful review of the record,2 Petitioner's
objections are OVERRULED, and the report and recommendation (Doc.
2) is ADOPTED as the Court's opinion in this case. As a result.
Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside,
or Correct Sentence (Doc. 1) is DENIED.
The Magistrate Judge recommended that Petitioner's motion be
denied because a Rehaif v. United States,
,, 139 S. Ct.
1 Unless otherwise stated, all citations are to Petitioner's civil
docket on this Court's electronic filing system, CV420-142.
2 The Court reviews de novo a magistrate judge's findings to which
a party objects, and the Court reviews for clear error the portions
of a report and recommendation to which a party does not object.
28 U.S.C. § 636(b)(1); see Merchant v. Nationwide Recovery Serv.,
Inc., 440 F. Supp. 3d 1369, 1371 (N.D. Ga. 2020) (outlining the
standard of review for report and recommendations (citing Macort
V. Prem, Inc., 208 F. App'x 781, 784 (11th Cir. 2006) (per
Case 4:20-cv-00142-WTM-CLR Document 8 Filed 11/17/22 Page 2 of 4
2191, 204 L. Ed. 2d 594 (2019), error is non-jurisdictional and
his guilty plea waived all non-jurisdictional defects. (Doc. 2 at
6 (citing Marks v. United States, 834 F. App'x 568, 569 (11th Cir.
2021) (per curiam)).) Citing the Supreme Court's opinion in Jones
, 141 S. Ct. 1307, 209 L. Ed. 2d 390
(2021), Petitioner's objection asserts a wholly novel argument
concerning his prior convictions as a juvenile. (Doc. 7 at 2.)
offenses in his case occurred while he was a minor, and this Court
should find that ''youth matters in sentencing." (Doc. 7 at 2.)
First, the Court is not required to consider arguments raised
for the first time in a petitioner's objections to a magistrate
judge's report and recommendation. See Williams v. McNeil, 557
discretion to decline to consider a party's argument when that
presented to the magistrate judge.").
Second, Petitioner's new argument is too vague and conclusory to
entitle him to relief under § 2255. See Killen v. United States,
No. 21-10888-E, 2021 WL 7159181, at *5 (11th Cir. Sept. 8, 2021)
entitle a movant to § 225'5 relief." (citing Tejada v. Duqger, 941
F.2d 1551, 1559 (11th Cir. 1991)). Finally, the Court is unable to
discern any basis for concluding that Jones called into question
reliance on juvenile convictions as predicate offenses. In Jones,
Case 4:20-cv-00142-WTM-CLR Document 8 Filed 11/17/22 Page 3 of 4
the Supreme Court held only that "the Eighth Amendment does not
require a finding that a minor be permanently incorrigible as a
prerequisite to a sentence of life without parole." 141 S. Ct. at
1323 (Thomas, J., concurring). The liberal construction afforded
to pro se pleadings simply does not permit the Court to conjure an
argument, even supposing one could be conjured, from Petitioner's
objection. See Ware v. City of Atlanta, 861 F. App'x 791, 797-98
(11th Cir, 2021) ("Although we liberally construe pro se briefs
. . . , a court may not serve as de facto counsel for a party or
rewrite a brief in order to preserve a claim." (internal quotation
marks and citation omitted)).
For the foregoing reasons. Petitioner's objections (Doc. 7)
are OVERRULED, and the report and recommendation (Doc. 2) is
ADOPTED as the Court's opinion. As a result. Petitioner's motion
(Doc. 1) is DENIED. This action is DISMISSED, and the Clerk of
Court is DIRECTED to close the case.
Applying the Certificate of Appealability (COA) standards set
forth in Brown v. United States, Nos. 407CV085, 403CR001, 2009 WL
307872, at *1-2 (S.D. Ga. Feb. 9, 2009), the Court discerns no
Case 4:20-cv-00142-WTM-CLR Document 8 Filed 11/17/22 Page 4 of 4
COA-worthy issues at this stage of the litigation, so no COA should
issue. 28 U.S.C. § 2253(c)(1); Rule 11(a) of the Rules Governing
Section 2255 Proceedings for the United States District Courts
so ORDERED this
day of November 2022.
WILLIAM T. MOORE,^R.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?