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Case 1:21-cr-00006-MHC-RDC Document 103 Filed 05/18/23 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
HUNTER VANPELT, MOTION TO VACATE
BOP ID 11439-509, 28 U.S.C. § 2255
Movant, CRIMINAL ACTION FILE
NO. 1:21-CR-0006-MHC-RDC
V.
CIVIL ACTION FILE
UNITED STATES OF AMERICA, NO. 1:23-CV-112-MHC-RDC
Respondent.
ORDER
Movant Hunter Vanpelt has filed a motion to vacate, set aside, or correct an
allegedly illegal sentence in accordance with 28 U.S.C. § 2255 ("Motion to
Vacate") [Doc. 99]. This matter is before the Court on the Final Report and
Recommendation of the Magistrate Judge [Doc. 100] ("R&R") recommending that
the motion to vacate be denied and that a certificate ofappealability not be issued.
The Order for Service of the R&R [Doc. 101] provided notice that, in accordance
with 28 U.S.C. § 636(b)(l), the parties were authorized to file objections within
fourteen (14) days of the receipt of that Order. On April 21, 2023, Movant filed
her objections to the R&R ("Movanfs Objs.") [Doc. 102].
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In reviewing a Magistrate Judge's R&R, the district court "shall make a de
navo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made." 28 U.S.C. § 636(b)(l). "Parties
filing objections to a magistrate's report and recommendation must specifically
identify those findings objected to. Frivolous, conclusive, or general objections
need not be considered by the district court." United States v. Schultz, 565 F.3d
1353, 1361 (11th Cir. 2009) (internal quotation marks omitted) (quoting Marsden
v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)). Absent objection, the district
court judge "may accept, reject, or modify, in whole or in part, the findings and
recommendations made by the magistrate judge," 28 U.S.C. § 636(b)(l), and need
only satisfy itself that there Is no plain error on the face of the record in order to
accept the recommendation. See United States v. Slay, 714 F.2d 1093,1095 (11th
Cir. 1983). In accordance with 28 U.S.C. § 636(b)(l) and Rule 72 of the Federal
Rules of Civil Procedure, the Court has conducted a de novo review of those
portions of the R&R to which objections have been made and has reviewed the
remainder of the R&R for plain error. See Slay, 714 F.2d at 1095.
In her R&R, the Magistrate Judge concluded that: (1) there is nothing in the
record to indicate that the Court failed to consider any "sentencing data" presented
at her sentencing hearing, (2) nothing was presented to the sentencing court to
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indicate that there were any mental health issues that were significantly mitigating
with respect to the crime to which Movant pleaded guilty, (3) there is no evidence
that Movant was coerced to plead guilty because of any threats involving "knives,
guns, & bombs" and, after the Court conducted a hearing to determine whether
Movant desired to maintain her plea and plea agreement, Movant elected to
proceed with her plea and plea agreement, and (4) there is no evidence that the
Government breached the plea agreement, which called for the Government to
recommend a low guideline sentence of 51 months imprisonment, not to mention
that the Court departed downward from the guideline range to impose a 41-month
custodial sentence. R&R at 2-8.
In her objections, Movant objects to "the full findings of the Magistrate
Court Judge" and contends the conclusions of the Magistrate Judge "are plainly in
error" and that an evidentiary hearing should be held. Movanfs Objs, at 2.
Movant fails to indicate any reason that any particular finding to conclusion is in
error and suggests that it is impossible to "argue in a limited response each such
error.
The district court is not required to grant a petitioner an evidentiary
hearing if the § 2255 motion "and the files and records of the case
conclusively show that the prisoner is entitled to no relief." 28 U.S.C.
2255(b); see Anderson v. United States, 948 F.2d 704, 706 (llth
Cir. 1991). The district court should order an evidentiary hearing and
rule on the merits of a petitioner's claim, however, "if the petitioner
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alleges facts that, if true, would entitle [her] to relief." Aron [v. United
Statesl, 291 F.3d [708J 714-15 [llth Cir. 2002] (internal quotation
marks omitted). Nevertheless, an evidentiary hearing is unnecessary
when the petitioner's allegations are " 'affirmatively contradicted by
the record' " or if such claims are " 'patently frivolous.' " Holmes v.
United States. 876 F.2d 1545, 1553 filth Cir.1989) (quoting United
States v. Guerra, 588 F.2d 519, 520-21 (5th Cir. 1979)).
Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015). In this case, Movanfs
claims are contradicted by the record and patently frivolous, so no evidentiary
hearing is required.
Moreover, Movant makes no specific objections to any of the Magistrate
Judge's findings, but instead makes a general objection after incorporating her four
grounds raised before the Magistrate Judge. Movant's Objs. at 1-2. This Court
need not consider any "frivolous, conclusive, or general objections" to the R&R,
Marsden, 847 F.2d at 1548; in addition, "a party does not state a valid objection to
an R&R by merely incorporating by reference previous filings. United States v.
Middleton, 595 K Supp. 3d 1277, 1283 (N.D. Ga. 2022) (citation omitted).
Consequently, after consideration ofMovanfs objections and a de novo
review of the record, it is hereby ORDERED that Movanfs Objections to the
R&R [Doc. 102] are OVERRULED.
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The Court APPROVES AND ADOPTS the Final Report and
Recommendation [Doc. 100] as the Opinion and Order of the Court. It is hereby
ORDERED that Movanfs motion to vacate, set aside, or correct an allegedly
illegal federal sentence in accordance with 28 U.S.C. § 2255 [Doc. 99] is
DENIED.
It is further ORDERED that a certificate ofappealabillty is DENIED
because Movant has not met the requisite standard. Slack v. McDaniel, 529 U.S.
473, 483-84 (2000). Movant may not appeal the denial of her motion but may seek
a certificate from the United States Court of Appeals for the Eleventh Circuit under
Federal Rule of Appellate Procedure 22. Rule 1 l(a). Rules Governing § 2255
Proceedings for the United States District Courts.
The Clerk is DIRECTED to close the civil case file.
IT IS SO ORDERED this 18th day of May, 2023.
MARK H. COHEN
United States District Judge