Nelson v. United States of America

Filing 16

AMENDED ORDER adopting the Magistrate Judge's 10 Report and Recommendation as the opinion of the Court; denying Petitioner's 28 U.S.C. § 2255 motion to vacate, set aside, or correct sentence; denying a Certificate of Appealability; and denying in forma pauperis status on appeal. Signed by Judge J. Randal Hall on 8/11/2015. (jah)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

CECIL DEWITT NELSON,
Movant,
Case No.

v.

CV615-021

CR612-005

UNITED STATES OF AMERICA,

Respondent.

AMENDED ORDER

After a careful, de novo review of the record, the Court concurs with the

Magistrate Judge's Report and Recommendation, doc. 10, to which objections have
been filed. Doc. 13. Accordingly, the Report and Recommendation of the Magistrate
Judge is ADOPTED as the opinion of the Court.

A prisoner seeking relief under 28 U.S.C. § 2255 must obtain a certificate of

appealability ("COA") before appealing the denial of his application for writ of habeas

corpus. This Court "must issue or deny a [COA] when it enters a final order adverse
to the applicant." Rule 11(a) to the Rules Governing Section 2255 Proceedings. It
should grant one only if the prisoner makes a "substantial showing of the 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.

McDaniel 529 U.S. 473, 482-84 (2000), movant Cecil Dewitt Nelson has failed to

make the requisite showing. Accordingly, a COA is DENIED in this case.1 Moreover,

because there are no non-frivolous issues to raise on appeal, an appeal would not be
taken in good faith. Accordingly, Nelson is not entitled to appeal in forma pauperis.

See 28 U.S.C. § 1915(a)(3).
The R&R advised the Court to deny Nelson's § 2255 motion because he in fact
had received conflict-free, effective assistance of counsel when he knowingly and

voluntarily pled guilty to a kidnapping conspiracy, for which he received a life
sentence.2 Furthermore, his "Blakelf claim was procedurally defaulted. Doc. 10.

Nelson's Fed. R. Civ. P. 71(b)(2) Objections show no error in the ruling on the "conflict
of interest" (based on a Kentucky case) and procedural default issues. He continues

to accuse his lawyer of "bad faith, dishonesty, and conspiracy with the government,"
doc. 12 at 3, and he insists that the district judge somehow conveyed to him the

impression that he faced only a 120-month term of imprisonment for his role as a

central player in the two kidnapping schemes. Id. at 12 (claiming that the district

judge somehow gave him "confidence" that his term ofimprisonment was limited to
120 months). But Nelson was not duped into such a belief because the district judge

directly informed him, during his guilty-plea hearing, that under the plea agreement
he faced life imprisonment:

1 "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 Governing Section 2255 Proceedings.

2 The conspirators forcibly enteredthe homes oftheir two victims, abducted them at

gunpoint, and held them for ransom. Alarge sum of money was paid by the families
of the two victims in order to secure their release. CR612-5, doc. 105.

Q. Now, if - I want you to be very sure that you understand -- I can
sentence you under your plea for up to life imprisonment. Do you
understand that?

A. Yes, sir.

Q. No question, you understand that. Is that right?
A. Yes, sir.

Doc. 188 at 38 (emphasis added). That exchange negates Nelson's "fraud" claim
outright.

Nelson has wasted this Court's time with a "buyer's remorse" filing. He chose

to plead guilty with full knowledge of the consequences. Now he must live with those
consequences.

ORDER ENTERED at Augusta, Georgia, this

// _ day of August, 2015.

HONOR^BtE J. RANDAL HALL
UNITEPSTATES DISTRICT JUDGE
[ERN DISTRICT OF GEORGIA