Carrion v. Carter, No. 1:2013cv01156 - Document 14 (N.D. Ga. 2014)
Court Description: ORDER AND OPINION adopting the 11 Final Report and Recommendation denying and dismissing Petitioners habeas petition 1 . It is further ordered that a Certificate of Appealability is denied. Signed by Judge Julie E. Carnes on 7/25/14. (ddm)
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION HENRY LEON CARRION, GDC No. 1000197581, Petitioner, : : : : : : : : v. ALLEN CARTER; Warden, Respondent. PRISONER HABEAS CORPUS 28 U.S.C. § 2254 CIVIL ACTION NO. 1:13-cv-1156-JEC-JSA ORDER AND OPINION This matter is before the Court on the Final Report and Recommendation ( R&R ) issued by United States Magistrate Judge Justin S. Anand [11], and Petitioner s Response thereto [13]. After conducting an extensive review of petitioner s claims for relief, Magistrate Judge Anand recommended that the petition be denied. Under 28 U.S.C. § 636(b)(1) and Rule 72 of the Federal Rules of Civil Procedure, the Court is obligated to conduct a de novo review of the portions of the R&R to which petitioner has objected. Court reviews the remainder of the R&R for plain error. States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983). The United Where a petitioner does not file specific objections to factual findings and recommendations of the magistrate judge, however, this Court need not perform a de novo review. Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993)(citing, inter alia, Stokes v. Singletary, 952 F.2d 1567, 1576 (11th Cir. 1992); LoConte v. Dugger, 847 F.2d 745, 750 (11th Cir. 1988)). AO 72A (Rev.8/8 2) I. DISCUSSION Petitioner filed this federal habeas corpus petition challenging his 2010 conviction and sentence by guilty plea in the Gwinnett County Court. (Pet. [1].) Petitioner raised one claim in the petition: that plea counsel was ineffective by stipulating with the prosecutor to change the charge in the indictment without the grand jury. (Id. at 5.) Magistrate Judge Anand based his recommendation to deny the petition for the following alternative reasons: (1) petitioner s claim is procedurally defaulted, and (2) it is without merit. (R&R [11].) Petitioner conclusions. appears For the to object reasons to both discussed of below, Judge Anand s petitioner s objections lack merit. A. Procedural Default Petitioner claims that his claim was encompassed in an ineffective counsel claim that he raised before the state habeas court; i.e., that he received ineffective assistance of counsel because counsel failed to challenge the indictment. Here, petitioner claims that counsel was ineffective for stipulating to change the indictment without the grand jury which was not raised in his state habeas petition, amended petition, or post-hearing brief. And although his petitioner raised this 2 AO 72A (Rev.8/8 2) claim the first time in application for a certificate of probable cause, it was waived because he did not raise it during his state habeas case. See O.C.G.A. § 9-14-51; Smith v. Zant, 250 Ga. 645, 648-48 (1983)(stating that under Georgia law a ground for relief is waived if it could have been raised in a state habeas action but was not). Thus, the Magistrate Judge was correct in finding that petitioner s claim is barred from review in this Court. See Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977)(holding federal review is barred for claims not raised by the petitioner in a state proceeding); accord Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir. 1999).1 B. Ineffective Assistance of Counsel The Magistrate Judge also correctly found that petitioner s claim alternatively fails on the merits. While petitioner argues that changing the amount of cocaine in the indictment is substantive and therefore only the grand jury explicitly rejects that contention. may amend it, Georgia law See Castillo v. State, 263 Ga. App. 772, 773 (2003)(stating that any quantity of cocaine above the statutory amount of 28 grams affects sentencing, not the manner in which the crime is committed ); Jones v. State, 258 Ga. App. 337, 338 (2002)( [T]o be guilty of trafficking in cocaine, one need only possess 28 grams or more of cocaine. . . . Larger amounts by 1 Petitioner has not attempted to show cause, prejudice, or a miscarriage of justice to overcome the procedural default. 3 AO 72A (Rev.8/8 2) specified increments affect only the punishment and are therefore not material allegations to prove the crime of trafficking. )(internal citations omitted); Partridge v. State, 187 Ga. App. 325, 327 (1988) (holding there was not a fatal variance where the indictment charged the defendant with trafficking 400 grams of cocaine but the evidence showed only 319 grams, because the code section only requires 28 grams of cocaine and [l]arger amounts by specified increment affect only the punishment. ). Thus, this Court agrees with Magistrate Judge Anand s conclusion that counsel s stipulation to the lesser amount of drugs--which benefitted Petitioner by reducing the applicable punishment--did not constitute ineffective assistance because it was neither deficient nor prejudicial. Accordingly, petitioner s objections are without merit. II. CONCLUSION Petitioner s objections are without merit, and the Court finds no clear error in the remainder of the Magistrate Judge s Report and Recommendation. IT IS THEREFORE ORDERED that the Court ADOPTS AS ITS ORDER the Magistrate Judge s Report and Recommendation [11] over petitioner s objections. Petitioner s habeas petition [1] is hereby DENIED and the instant action is DISMISSED. 4 AO 72A (Rev.8/8 2) IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED. The Clerk is DIRECTED to close this case. IT IS SO ORDERED, this 25th day of July, 2014. /s/ Julie E. Carnes JULIE E. CARNES CHIEF UNITED STATES DISTRICT JUDGE 5 AO 72A (Rev.8/8 2)
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