Chew v. United States of America

Filing 8

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
SAVANNAH DIVISION

TSADDIQ NDESHA CHEW,

Petitioner,
CASE NO. CV420-142

V.

CR415-182

UNITED STATES OF AMERICA,

Respondent.

ORDER

Before

the

Court

is

the

Magistrate

Judge's

Report

and

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,

U.S

,, 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
curiam))).

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
V. Mississippi,

U.S.

, 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.)
Petitioner

argues

that

two

of

the

charges

used

as

predicate

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
F.3d

1287,

1292

(11th

Cir.

2009)

("[A]

district

court

has

discretion to decline to consider a party's argument when that

argument

was

not first

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)
("Conclusory

claims,

unsupported

by facts

or

argument,

cannot

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
("The

district

appealability

court

when

must

it

issue

enters

a

or

final

deny

a

order

certificate

adverse

applicant.") •

so ORDERED this

^

day of November 2022.

WILLIAM T. MOORE,^R.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

to

of

the