Opinion
CASE NO. CV508-034.
August 10, 2009
ORDER
Before the Court is the Magistrate Judge's Report and Recommendation (Doc. 4), to which objections have been filed (Docs. 6, 7 13). After a careful de novo review, the Court ADOPTS the Magistrate Judge's Report and Recommendation. This Court has considered Plaintiff's Objections and finds them to be without merit. The § 2255 Motion is DENIED. The Clerk of Court is DIRECTED to close this case.
In his Motion, the Plaintiff asserted that the Constitution was violated because his counsel did not attend the presentence investigation interview despite his counsel being aware of the time, date, and place of the hearing. It is not clear whether Plaintiff is alleging that his counsel was ineffective or that he was denied counsel under this claim. In the Report and Recommendation, the Magistrate Judge addressed this as a claim brought under the rubric of ineffective assistance of counsel only. The Court notes that even if this claim was understood to be a claim for denial of counsel, the claim would fail, despite the fact that this issue appears to be an open one in the Eleventh Circuit. See United States v. Simpson, 904 F.2d 607, 611 (11th Cir. 1990). However, Plaintiff has cited no law to support the proposition that he is entitled to counsel at a presentence investigation interview, and this Court is aware of none. Moreover, the vast majority of other circuits to hear this issue found no violation of the right to counsel where a probation office conducts a presentence interview outside the presence of counsel, especially if the probation office has taken no action to exclude counsel. United States v. Tyler, 281 F.3d 84, 96 (3d Cir. 2002), United States v. Hicks, 948 F.2d 877, 885 (4th Cir. 1991), United States v. Woods, 907 F.2d 1540, 1543 (5th Cir. 1990), United States v. Tisdale, 952 F.2d 934, 939-40 (6th Cir. 1989), United States v. Jackson, 886 F.2d 838, 844-45 (7th Cir. 1989), United States v. King, ___ F.3d ___, 2009 WL 674137, *2-3 (8th Cir., Mar. 17, 2009), Baumann v. United States, 692 F.2d 565, 578 (9th Cir. 1982).
All other Motions in this case are DISMISSED AS MOOT.
SO ORDERED.