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IN THE UNITED STATES DISTRICT COURT

FORTHE SOUTHERN DISTRICT OF GEORGIA

AUGUSTA DWISION

ROGER GAMBREL,

Petitioner,

I.]}IITED STATES OF AMERICA,

Respondent.

cv 112-126
(Formerly CR 109-003)

O R D E R

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

Judge's Report and Recommendation ("R&R"), to which objections have been filed (doc.

no. 9).' In the R&R, the Magistrate Judge recommended granting Respondent's motion to

dismiss Petitioner's motion under 28 U.S.C. $ 2255 to vacate, set aside, or correct his

sentence. (Doc. no. 5.) The Magistrate Judge concluded that the $ 2255 motion should be

dismissed without an evidentiary hearing because Petitioner's claims were barred fiom

review, lacked merit as a matter of law, or were otherwise affirmatively contradicted by the

record. [d. at 7-8.) The Magistrate Judge then found that Petitioner's claims in Grounds

One and Two ofhis motion alleging that he had received ineffective assistance of counsel

before he entered his guilty plea and that his guilty plea was not knowing and voluntary

lacked merit. (Id. at l0-23.) The Magistrate Judge also found that Petitioner knowingly and

rPetitioner requested, and was granted, an extension of time in which to object to the

R&R. (Doc. nos. 7, 8.)

voluntarily waived his rights to appeal and collaterally attack his sentence, such that his

claims in Ground Three conceming the "unreasonableness" ofhis sentence and ineffective

assistance of counsel at sentencing were barred from review. (!d. at 8-10.) Finally, the

Magistrate Judge found that Petitioner's claim in Ground Four that he received ineffective

assistance of counsel on appeal lacked merit. (Id. at 23-25.)

None of Petitioner's objections, the majority of which are a reiteration of the

contentions he made in his $ 2255 motion, provide any reason to depart from the conclusions

in the R&R. Petitioner primarily disputes the Magistrate Judge's finding that he was not

entitled to an evidentiary hearing, as he contends that the Magistrate Judge "focused on the

record," but that matters "outside the record" are necessary to resolution ofhis claims.2 (See

doc. no. 9, pp.4-6.) The Court agrees with the Magistrate Judge, however, that Petitioner's

proffered allegations are either affirmatively contradicted by the record - namely, his swom

testimony at his Rule 1 t hearing - or otherwise, even if taken as true, fail to show that he is

entitled to relief. (See doc. no. 5, pp.7-8,20-22.\ Accordingly, there is no need for an

evidentiary hearing. $se Holmes v. United States,816F.2d 1545, 1553(1lthCir. 1989);

Aron v. United States,291 F.3d708,714-15 (11th Cir. 2002).

Petitioner also repeatedly asserts that his retained counsel was ineffective for failing

to inform him of the specific enhancements

that would be applied to his sentence after he

was convicted and that his guilty plea was not knowing and voluntary because of his

ignorance of these enhancements. (See doc. no. 9, pp. 2, 3, 11, 18, 24-29.) Petitioner

'Petitioner has presented two affidavits, his own and that ofConnie S. Lutz, which
purport to provide factual support for the allegations in his $ 2255 motion and objections.
(See doc. no. 9, pp.32-43.)

ignores, however, the Magistrate Judge's well-supported conclusions, with which the Court

a$ees, that Petitioner's alleged ignorance ofhis sentencing enhancernents, even iftrue, fails

to establish either ineffective assistance ofcounsel or that his guilty plea was not knowing

and voluntary. Seedoc.no.5,pp. 15-18,21 &n.14; United States v. Wilson,245 F. App'x

10, l1-12 (llth Cir. 2007) (per curian);United States v. Henington,350 F. App'x 363, 369

(1 lth Cir. 2O09) Qter curiam).

Among his lengthy, repetitive objections, Petitioner also attempts to raise two new

claims. The Court need not consider matters raised for the first time in objections. See

Williams v. McNeil, 557 F.3d 128'1,1291 (11th Cir.), cert. denied, 129 S. Ct. 274'7 (U.5.

2009) (approving district court's refusal to consider new argument set forth in objections

where party had opportunity to present such argument to magistrate judge and failed to do

so); see also Garev v. United States, 5:08-CV-90024-CDL, 201 0 WL2507833, at *1 (M.D.

Ca. June 15, 2010) (noting that district court has discretion to refuse to consider new claim

raised in objections). In any event, exercising its discretion to consider these new claims, the

Court finds that they are devoid ofmerit.

Petitioner first contends that counsel did not inform him of the potential for a life

term ofsupervised release, and that, had he known of this penalty (as well as his sentencing

enhancernents), he would have "opted for ajury trial." (Doc. no. 9, p. 12.) The Magistrate

Judge already addressed Petitioner's claim concerning the sentencing enhancements, but

Petitioner is only now asserting for the first time that he was unaware of the potential for a

life term of supervised release. At Petitioner's Rule 1 t hearing, however, the undersigned

clearly explained to him, before he entered his guilty plea, that one ofthe penalties he would

be subject to if he pled guilty was a supervised release term of five years to life. See United

States v. Gambrel, CR 109-003, doc. no. 60, p. 15 f'CR 109-003"). Armed with that

information, Petitioner nonetheless chose to proceed and plead guilty. Id. at 20, 29. Thus,

Petitioner fails to establish either that counsel was ineffective or that his guilty plea was not

knowing and voluntary. See Hill v. Lockhart, 474 U.5.52, 59 (1985); United States v.

Moriarty, 429 F.3 d 1 0 I 2, I 01 9-20 (l 1 th Cir. 2005).

Petitioner also raises a new claim about the application of enhancements

to his

sentence, arguing that a higher standard ofproofthan preponderance ofthe evidence should

have been required. (See doc. no. 9, pp. 13-18.) This claim, however, is barred by

Petitioner's valid waiver of his right to collaterally attack his sentence.r See CR 109-003,

doc. no. 3 1, p. 6; Williams v. United States, 396 F.3d 1340, 1342 (1 lth Cir. 2005).

Petitioner's remaining objections are likewise without merit and do not warrant

fufiher discussion. As aresult, Petitioner's objections are OVERRULED. Accordingly, the

Report and Recommendation of the Magistrate Judge is ADOPTED as the opinion of the

Court. Therefore, Respondent's motion to dismiss is GRANTED, (doc. no. 3), and the

instant motion filed pursuant to 28 U.S.C. $ 2255 is DISMISSED without an evidentiary

hearins.

Furthermore, a federal prisoner must obtain a certificate of appealability ("COA')

rPetitioner's related argument, that the enhancements to his sentence should have
been charged in his indictment or delineated in his plea agreement, (doc. no. 9, pp. 18,27-
28), appears to be a reiteration ofhis contention that his guilty plea was not knowing and
voluntary because he was ignorant of his sentencing enhancements. Even assuming
arguentlo that such a claim is not barred by Petitioner's valid collateral attack waiver,
however, 'hnindicted conduct can serve as a basis for sentencing enhancements." United
States v. Chavers, 416 F. App'x 863, 866 (llth Cir. 2011) Qter curiam) (no merit to
constitutional challenges to district court's imposition ofsentencing enhancements not pled
in the indictment) (citing United States v. Nvhuis, 8 F.3d 731, 744 (11thClr. 1993)).

before appealing the denial of his motion to vacate. This Court "must issue or deny a

certificate of appealability when it enters a final order adverse to the applicant." Rule 1 1(a)

to the Rules Goveming Secti on2255 Proceedings. This Court should grant a COA only if

the prisoner makes a "substantial showing ofthe denial ofa constitutional right." 28 U.S.C.

$ 2253(c)(2). For the reasons set forth in the Report and Recommendation and this Order,

and in consideration ofthe standards enunciated in Slack v. McDaniel ,529U.5.473,482-84

(2000), Petitioner has failed to make the requisite showing. Accordingly a COA is

DENIED in this case.a Moreover, because there are no non-{iivolous issues to raise on

appeal, an appeal would not be taken in good faith. Accordingly, Petitioner is not entitled

to appeal informa pauperis. See 28 U.S.C. $ 1915(a)(3).

Upon the foregoing, this civil action is CLOSED.

so ORDERED

this 3n4ay of

,2013, at Augusta, Georgia.

TATES DISTRICT JUDGE

DISTRICT OF GEORGIA

""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
I 1(a) to the Rules Goveming Section 2255 Proceedings.