Opinion
2:03-CR-0046 (02).
August 18, 2004
ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND RECOMMENDATION, AND DENYING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE
Defendant has filed a motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence by a person in federal custody. On July 30, 2004, the United States Magistrate Judge issued a Report and Recommendation in this cause recommending therein that defendant's motion be denied. On August 9, 2004, defendant filed objections to the Report and Recommendation.
By his objections, defendant contends:
1. Fifth Circuit case law holding that the United States Supreme Court case of Blakely v. Washington, 124 S.Ct. 2531 (2004) does not extend to the federal Sentencing Guidelines is not binding on this Court because the Supreme Court has yet to consider whether the federal guidelines violate Blakely and, thus, the Fifth Circuit ruling has no authority;
2. The Magistrate Judge failed to address his second ground, to wit: defendant was denied effective assistance of counsel.
With regard to defendant's claim that Fifth Circuit case law analyzing Blakely is not binding on this Court, such objection is OVERRULED. Defendant makes only a bare bones allegation without citing any supporting authority for his argument that this Court is not bound by Fifth Circuit precedent, or that federal appellate court rulings considering Supreme Court cases have no authority unless the Supreme Court has first ruled on the application of its holdings.
With regard to his second objection, defendant, in his motion to vacate, did not set forth any factual allegations or specifics supporting his claim of ineffective assistance of counsel, and his claim was conclusory and subject to denial for that reason. Defendant, in his objections, contends trial counsel was ineffective because she failed to request an independent chemical analysis of the cocaine base he possessed. Defendant alleges that if such an independent analysis had been performed, "there is a reasonable probability that the result of the proceedings would have been different." Defendant, without any support whatsoever, makes the conclusory allegation that the controlled substance was not pure cocaine base, and that it weighed less than the weight the government alleged. Defendant has not shown he was prejudiced in any manner by any failure to obtain an independent chemical analysis. Defendant's objection is OVERRULED.
Having made an independent examination of the record in this case, including the Report and Recommendation of the Magistrate Judge, and having overruled defendant's objections, the undersigned United States District Judge hereby ADOPTS the Magistrate Judge's Report and Recommendation. Accordingly, the motion to vacate, set aside or correct sentence filed by defendant RICKY LEWIS PRICE is DENIED.
IT IS SO ORDERED.