Summary
stating that the defendant's "current attempt to disavow his previous sworn testimony at the plea hearing by creating some vast conspiracy amongst several highly regarded individuals against him does not meet this burden."
Summary of this case from Sutter v. United StatesOpinion
28 U.S.C. § 2255 CRIMINAL NO. 1:03-CR-131-CC-CCH CIVIL ACTION NO. 1:08-CV-758-CC-CCH
02-01-2012
SCOTT HINTZ, Movant, v. UNITED STATES OF AMERICA, Respondent.
ORDER
The instant § 2255 motion to vacate is before the Court on the Magistrate Judge's Report and Recommendation ("R&R") recommending that the action be denied [Doc. 526], and Movant's objections thereto [Doc. 528]. The Court reviews de novo the portions of the R&R to which Petitioner has objected and reviews for plain error the remaining portions. See 28 U.S.C. § 636(b)(1); Fed. Civ. P. 72(b)(3); United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
This Court has held on several occasions that Movant may not represent himself. Because Movant is represented by counsel, the Court does not consider Movant's pro se objections to the R&R at Docs. 529-530. See L.R. 83.1D(2), N.D. Ga. ("Whenever a party has appeared by attorney, the party cannot thereafter appear or act on the party's own behalf in the action or proceeding, or take any step therein. . . .").
I. Discussion
Petitioner argues that the Magistrate Judge made incorrect credibility determinations after holding an evidentiary hearing on Petitioner's claims. Petitioner takes issue with the R&R's conclusion that Movant's testimony in this case "was not credible and is not entitled to any weight." (Doc. 528 at 1; Doc. 526 at 10). Movant believes that his testimony "stands on its own, is supported by his affidavits, and is corroborated by appropriate inferences from the other evidence. . . ." (Doc. 528 at 1). The record supports the Magistrate Judge's determination, and Petitioner has provided no basis to reach a different conclusion than the one set out in the R&R. Moreover, on at least two previous occasions, this Court also has given little or no weight or credit to Petitioner's testimony after applying the law governing credibility of witnesses. (See Doc. 154 at 1-3; Doc. 512 at 182-83).
Based on the Magistrate Judge's credibility determination and review of the evidence, the Magistrate Judge found that: Movant's plea was entered into knowingly and voluntarily; he did not demonstrate that his counsel was ineffective in connection with entering his plea or the appellate waiver contained therein; he fabricated his claims of a vast conspiracy by his counsel and other highly regarded individuals that allegedly coerced him into entering his plea; and his remaining claims were barred by the appellate waiver and/or the law-of-the-case doctrine. (Doc. 526 at 24-34). This Court agrees.
II. Conclusion
For the reasons set forth above, the Court OVERRULES Petitioner's objections (Doc. 528), ADOPTS the Magistrate Judge's Final Report and Recommendation (Doc. 526), DENIES the instant § 2255 motion to vacate (Doc. 253), and DISMISSES the action in this Court.
IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED.
IT IS FURTHER ORDERED that the Motion for Reconsideration and for Clarification (Doc. No. 386) is DENIED, and the following motions are DENIED AS MOOT: (1) Petitioner's Motion to Proceed In Forma Pauperis, Motion for Free Access to Pacer, and Motion for CJA Voucher for Unconflicted Counsel (Doc. No. 264); (2) Notice of Docketing Error and Motion to Correct (Doc. No. 267); (3) Motion for Immediate Status Hearing Due to Recently Available Evidence (Doc. No. 281); (4) Motion for Hearing to Resolve Serious Due Process Concerns (Doc. No. 284); (5) Motion for Immediate Due Process Hearing, Motion for Release from Conditions, and Motion for Change of Venue (Doc. No. 294); and (6) Motion for Judicial Notice and to Support Doc. #294 Filing (Doc. No. 296).
IT IS SO ORDERED this 1st day of February, 2012.
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CLARENCE COOPER
SENIOR UNITED STATES DISTRICT JUDGE