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Order — United States v. Vanpelt (Dkt. 103, N.D. Ga.)

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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].
    Case 1:21-cr-00006-MHC-RDC Document 103 Filed 05/18/23 Page 2 of 5




      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


                                            2
    Case 1:21-cr-00006-MHC-RDC Document 103 Filed 05/18/23 Page 3 of 5




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
                                            3
    Case 1:21-cr-00006-MHC-RDC Document 103 Filed 05/18/23 Page 4 of 5




      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.
    Case 1:21-cr-00006-MHC-RDC Document 103 Filed 05/18/23 Page 5 of 5




      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


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