Orange v. United States Of America

Filing 18

ORDER ADOPTING 14 Report and Recommendations of the Magistrate Judge as the opinion of the Court and Plaintiff's Objections, dkt no. 17, are OVERRULED. The Court DISMISSES in part and DENIES in part Orange's Motion to Vacate, Set Aside, o r Correct his Sentence, filed pursuant to 28 U.S.C. § 2255. Orange is DENIED a Certificate of Appealability and in forma pauperis status on appeal. The Clerk is DIRECTED to enter the appropriate judgment of dismissal and to CLOSE this case. Signed by Chief Judge Lisa G. Wood on 5/2/2016. (ca)

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RUDOLPH V. ORANGE,

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Petitioner,

CIVIL ACTION NO.: 5:14-cv-108

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V.

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UNITED STATES OF AMERICA,

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(Criminal Case No.: 5:11 -cr-7)

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Respondent.

ORDER

After an independent and de novo review of the record, the
undersigned concurs with the Magistrate Judge's Report and
Recommendation, dkt. no. 14, to which Rudolph Orange ("Orange")
filed Objections. Accordingly, the Court ADOPTS the Magistrate
Judge's Report and Recommendation, as supplemented herein, as
the opinion of the Court.
In his Objections, Orange contends the Magistrate Judge
"does not dispute" that the decision in Alleyne v. United
States,

U.S.

, 133 S. Ct. 2151 (June 17, 2013), coupled

with the decision in Peugh v. United States,

U.S.

, 133

S. Ct. 2072 (June 13, 2013), reveal that Orange's sentence is
above the statutory maximum. Dkt. 17, p. 2. Contrary to
Orange's Objections, the Magistrate Judge did not agree that

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(Rev. 8/82)

these decisions reveal Orange's sentence to be above the
mandatory maximum. Rather, the Magistrate Judge made it clear
that the Eleventh Circuit Court of Appeals had already rejected
Orange's arguments based on Peugh and Alleyne on Orange's direct
appeal. Dkt. No. 14, pp. 5-6. The Magistrate Judge also
concluded that, even if the Eleventh Circuit had not already
rejected these arguments, Peugh and Alleyne offer Orange no
relief. In so doing, the Magistrate Judge explained the United
States Supreme Court's holdings in these cases and, with respect
to Alleyne, the Magistrate Judge specifically stated why the
decision could not provide Orange with his requested relief.
Id. at pp. 6-7.
Orange also states the Magistrate Judge failed to consider
under a "Padilla" analysis whether he met the first prong under
Federal Rule of Civil Procedure 11(d)—the close assistance of
counsel. Dkt. No. 14, pp. 6-7. In Padilla v. Kentucky, 559
U.S. 356, 374 (2010), the Supreme Court held that counsel must
inform his client whether his plea of guilty carries a risk of
deportation. The Court is not aware that Orange's guilty plea
carried a risk of deportation, and Orange has not presented any
evidence of the same. Even if it did, however, Orange raises
this particular claim for the first time in his Objections.
This is an independent ground to overrule Orange's Objections.
Williams v. McNeil, 557 F.3d 1287 (11th Cir. 2009); Driskell v.
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Price, 2:13-CV-01541-VEH-SG, 2015 WL 545382, at *8 (N.D. Ala.
Feb. 10, 2015) ("The filing of objections is not a proper
vehicle through which to make new allegations or present
additional evidence."). In addition, the Court already
determined Orange "had close assistance of experienced
counsel'" under Rule 11(d). Dkt. No. 14, P. 16 (quoting Hr'g
Tr., United States v. Orange, (S.D. Ga. Sept. 23, 2012), ECF No.
256, P. 26)
For all of these reasons, the Report and Recommendation of
the Magistrate Judge is hereby ADOPTED as

the opinion of the

Court and Plaintiff's Objections, dkt no. 17, are

OVERRULED.

The Court DISMISSES in part and DENIES in part Orange's Motion
to Vacate, Set Aside, or Correct his Sentence, filed pursuant to
28 U.S.C. § 2255. Orange is DENIED a Certificate of
Appealability and in .forma pauperis status on appeal. The Clerk
of Court is DIRECTED to enter the approp4ate judgment of
dismissal and to CLOSE this case.
SO ORDERED, this

dro

LIS GODY WOOD, CHIEF JUDGE
UNI'TATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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, 2016.