Opinion
CASE NO. 1:97-cr-00013-MP-AK, 1:97-cr-00047-MP-AK.
March 14, 2008
ORDER
This matter is before the Court on Doc. 1311, Report and Recommendation of the Magistrate Judge, which recommends that Defendant's Motion to Vacate in Case No. 1:97-cr-00013, Doc. 1301, be denied, and that Defendant's Motion to Vacate in Case No. 1:97-cr-00047, Doc. 141, also be denied. The Magistrate Judge filed the Report and Recommendation on Wednesday, February 13, 2008. The parties have been furnished a copy of the Report and have been afforded an opportunity to file objections. Pursuant to Title 28, United States Code, Section 636(b)(1), this Court must make a de novo review of those portions to which an objection has been made. In this instance, however, no objections have been filed.
Defendant was sentenced to a total of 162 months imprisonment following convictions for conspiracy to possess marijuana, cocaine, and methamphetamine, obstruction of justice by tampering with witnesses, and two counts of assaulting a law enforcement officer. In his motion to vacate, Defendant claims that his sentence violates United States v. Booker, 543 U.S. 220 (2005), that his sentencing counsel was ineffective by failing to inform him of Booker, and that counsel misadvised him regarding his right to appeal. After reviewing the matter, the Magistrate recommends that Defendant's motion to vacate be denied. The Court agrees with the Magistrate. Booker is plainly not applicable to cases on collateral review, and counsel cannot be deemed ineffective for failing to anticipate changes in the law. Finally, the Court agrees with the Magistrate that the record does not reflect that Defendant told counsel to file a notice of appeal, but rather that Defendant accepted counsel's recommendation and consciously made the decision not to appeal based upon counsel's advice.
Therefore, having considered the Report and Recommendation, and the lack of objections thereto, I have determined that it should be adopted. Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. The Report and Recommendation of the Magistrate Judge is adopted and incorporated herein.
2. Defendant's Motion to Vacate in Case No. 1:97-cr-00013, Doc. 1301, is DENIED.
3. Defendant's Motion to Vacate in Case No. 1:97-cr-00047, Doc. 141, is DENIED.
DONE AND ORDERED.