Opinion
CASE NO. 1:03-cr-00005-MP-AK.
April 2, 2008
ORDER
This matter is before the Court on Doc. 62, Report and Recommendation of the Magistrate Judge, which recommends that Defendant's Motion to Vacate, Doc. 58, be denied. The Magistrate Judge filed the Report and Recommendation on Monday, March 3, 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.
After a jury trial, Defendant was convicted of manufacturing and possessing with intent to distribute more than 50 grams of methamphetamine, and of distributing methamphetamine to a person under the age of 21. Prior to and during sentencing, Defendant argued that the Presentence Report was incorrect in holding him responsible for 135.2 grams of a substance containing methamphetamine, since the weight included "non-consumable toxic by-products." The Court found that the Presentence Report accurately reflected the amount of methamphetamine attributable to the Defendant, and the Eleventh Circuit rejected the argument that the Court erred "in sentencing [Defendant] based upon the entire weight of the solution." In the instant motion to vacate, Defendant alleges that trial counsel was ineffective by failing to challenge Government's expert witnesses, by failing to have an expert witness analyze the methamphetamine, and by failing to seek a jury determination of drug weight.
As to each claim, the Magistrate concludes that Defendant cannot show any deficiency in counsel's performance, or any resulting prejudice to support an ineffective assistance claim. After reviewing the recommendations, the Court agrees with the Magistrate. 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, Doc. 58, is DENIED.
DONE AND ORDERED.