Opinion
CASE NO. CV417-111 CASE NO. CR416-157
08-02-2018
CHRISTOPHER WALKER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER
Before the Court is the Magistrate Judge's Report and Recommendation (Doc. 4), to which objections have been filed (Doc. 5). After a careful de novo review of the record, the Court concludes that Petitioner's objections are without merit. Accordingly, the Report and Recommendation is ADOPTED as the Court's opinion in this case. As a result, Petitioner's 28 U.S.C. § 2255 petition is DENIED. In addition, Petitioner is not entitled to a Certificate of Appealability ("COA"), rendering moot any request for in forma pauperis status on appeal. The Clerk of Court is DIRECTED to close this case.
In his objections, Petitioner continues to contend that his counsel was ineffective for failing to argue at sentencing that Petitioner's federal sentence should run concurrent with any anticipated state sentence stemming from the same conduct. (Doc. 5 at 2-5.) Petitioner, however, is incorrect. The Court was not obligated to order an anticipated state sentence to run concurrently, but retained discretion to do so. See Setser v. United States, 566 U.S. 231, 236 (2012); United States v. McDaniel, 338 F.3d 1287, 1288 (11th Cir. 2003) ("[A] district court does have the authority to make a federal sentence concurrent to a state sentence not yet imposed for pending state charges[.]"); United States v. Andrews, 330 F.3d 1305, 1307 (11th Cir. 2003) ("[A] court does have the authority to impose a consecutive sentence to an unimposed, future sentence."). Therefore, Petitioner's counsel was not ineffective for failing to raise this unmeritorious argument. See United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992).
SO ORDERED this 2ND day of August 2018.
/s/_________
WILLIAM T. MOORE, JR.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA