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)

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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

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