IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

HILLARY BERNARD BALDWIN, : 

Petitioner, : 

CIVIL ACTION 09-0713-KD-M 

v. : 

CRIMINAL ACTION 08-00275-KD-M 

UNITED STATES OF AMERICA, : 

Respondent. : 

REPORT AND RECOMMENDATION

Pending before the Court is Petitioner’s Motion to Vacate,

Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Docs. 32-

33). This action was referred to the undersigned Magistrate

Judge for report and recommendation pursuant to 28 U.S.C. §

636(b) and Rule 8(b) of the Rules Governing Section 2255 Cases. 

It is now ready for consideration. The record is adequate to

dispose of this matter; no evidentiary hearing is required. It

is recommended that Petitioner’s Motion to Vacate (Docs. 32-33)

be denied, that this action be dismissed, and that judgment be

entered in favor of Respondent, the United States of America, and

against Petitioner Hillary Bernard Baldwin. It is further

recommended that it be found that Baldwin is not entitled to a

certificate of appealability and, therefore, is not entitled to

appeal in forma pauperis.

Baldwin was indicted on August 28, 2008, pursuant to a

criminal complaint, for conspiracy to possess, with intent to

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distribute, cocaine in violation of 21 U.S.C. § 846 (Docs. 1,

12). On October 21, Petitioner entered into a plea agreement in

which Baldwin pled guilty to the indictment (Doc. 21). On July

17, 2009, Judge DuBose sentenced Petitioner to 180 months on the

conviction as well as eight years of supervised release following

his release from prison, and an assessment of one hundred dollars

(Doc. 30). Baldwin did not appeal his conviction (see Doc. 32,

p. 3, ¶ 8).

Petitioner filed his Motion to Vacate, Set Aside, or Correct

Sentence under 28 U.S.C. § 2255 on October 30, 2009 in which he

raised the following claims: (1) His guilty plea was not

knowingly and voluntarily made and (2) his attorney rendered

ineffective assistance of counsel (Docs. 32-33). Respondent

filed a response on December 30, 2009 (Doc. 35). 

Baldwin first claims that his guilty plea was not knowingly

and voluntarily made (Doc. 32, p. 4). Petitioner has more

specifically claimed that he did not know that his prior

convictions were going to be used to enhance his sentence and

that there was no factual basis for the plea (Doc. 33, pp. 2-3,

4-5). The Eleventh Circuit Court of Appeals, in U.S. v. Monroe,

353 F.3d 1346, 1354 (11th Cir. 2003), has given instructions

stating that, when a court evaluates a claim by a defendant that

his rights have been prejudiced, the court should examine “the

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Fed.R.Crim.P. 11 deals with pleas.

3

three ‘core objectives’ of Rule 11,1

 which are: (1) ensuring

that the guilty plea is free of coercion; (2) ensuring that the

defendant understands the nature of the charges against him; and

(3) ensuring that the defendant is aware of the direct

consequences of the guilty plea.” Monroe, 353 F.3d at 1354

(citing U.S. v. Lejarde-Rada, 319 F.3d 1288, 1289 (11th Cir.

2003)).

The Court notes first that Respondent has asserted that this

claim is procedurally defaulted because it was not raised on

direct appeal; more specifically, the argument goes, because

Baldwin did not appeal his conviction, he is procedurally barred

from raising the claim now unless he satisfies certain

requirements (Doc. 35, pp. 10-12). While Respondent may be

correct in this assertion, the Court will proceed to the merits

of this claim, finding it to be a more expeditious use of time.

To evaluate Baldwin’s claim, the Court will first review the

course of proceedings surrounding his plea, first noting the

following specific statements in his Plea Agreement:

3. The defendant understands that the

statements he makes under oath in the plea of

guilty must be completely truthful and that

he can be prosecuted for making false

statements or perjury for any false

statements he makes intentionally in this

plea of guilty. 

*** 

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5. The defendant is not under the

influence of alcohol, drugs, or narcotics. 

He is certain that he is in full possession

of his senses and mentally competent to

understand this Plea Agreement and the guilty

plea hearing which will follow.

6. The defendant has had the benefit of

legal counsel in negotiating this Plea

Agreement. He has discussed the facts of the

case with his attorney, and his attorney has

explained to the defendant the essential

legal elements of the criminal charges which

have been brought against him. The

defendant’s attorney has also explained to

the defendant his understanding of the United

States’ evidence.

7. The defendant understands that the

United States has the burden of proving each

of the legal elements of the criminal charges

beyond a reasonable doubt. The defendant and

his counsel have discussed possible defenses

to the charges. The defendant believes that

his attorney has represented him faithfully,

skillfully, and diligently, and he is

completely satisfied with the legal advice of

his attorney.

8. A separate document, entitled

Factual Resume, will be submitted to the

Court as evidence at the guilty plea hearing. 

The Factual Resume is incorporated by

Reference into this Plea Agreement. The

defendant and the United States agree that

the Factual Resume is true and correct.

9. This plea of guilty is freely and

voluntarily made and is not the result of

force, threats, promises, or representations

apart from those set forth in this Plea

Agreement. There have been no promises from

anyone as to the particular sentence that the

Court may impose. The defendant avers that

he is pleading guilty because he knows that

he is guilty.

PENALTY

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10. The maximum penalty the Court could

impose as to Count One is:

a. A minimum mandatory sentence of

10 years to life without parole;

***

SENTENCING

11. The Court will impose the sentence

in this case. The United States Sentencing

Guidelines apply in an advisory manner to

this case. The defendant has reviewed the

application of the Guidelines with his

attorney and understands that no one can

predict with certainty what the sentencing

range will be in this case until after a presentence investigation has been completed and

the Court has ruled on the results of that

investigation. The defendant understands

that at sentencing, the Court may not

necessarily sentence the defendant in

accordance with the Guidelines. . . .

***

13. The defendant understands that this

Plea Agreement does not create any right to

be sentenced in accordance with the

Sentencing Guidelines, or below or within any

particular guideline range, and fully

understands that determination of the

sentencing range or guideline level, or the

actual sentence imposed, is solely the

discretion of the Court.

(Doc. 21). At the bottom of the Agreement is a statement that

this agreement is the entire agreement between the U.S. Attorney

and Baldwin (Doc. 21, p. 10). After that, the following

statement appears: 

I have consulted with my counsel and

fully understand all my rights with respect

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to the offenses charged in the Indictment

pending against me. I have read this Plea

Agreement and carefully reviewed every part

of it with my attorney. I understand this

agreement, and I voluntarily agree to it. I

hereby stipulate that the Factual Resume,

incorporated herein, is true and accurate in

every respect, and that had the matter

proceeded to trial, the United States could

have proved the same beyond a reasonable

doubt.

(Doc. 21, pp. 10-11). This is followed by Baldwin’s signature

(Doc. 21, p. 11), after which appears the following statement by

Petitioner’s attorney:

I am the attorney for the defendant. I

have fully explained his rights to him with

respect to the offenses charged in the

Indictment in this matter. I have carefully

reviewed every part of this Plea Agreement

with him. To my knowledge, his decision to

enter into this agreement is an informed and

voluntary one. I have carefully reviewed the

Factual Resume, incorporated herein, with the

defendant and to my knowledge, his decision

to stipulate to the facts is an informed,

intelligent and voluntary one.

(Doc. 21, p. 11). The Factual Resume which accompanies the Plea

Agreement, though lengthy, will be herein set out in full:

The defendant, HILLARY BERNARD BALDWIN,

admits the allegations of Count One of the

Indictment. 

ELEMENTS OF THE OFFENSE

HILLARY BERNARD BALDWIN, understands

that in order to prove a violation of Title

21, United States Code, Section 846, as

charged in Count One of the Indictment, the

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United States must prove that:

First: That two or more persons in

some way or manner, came to a

mutual understanding to try to

accomplish a common and

unlawful plan, as charged in

the indictment; and

Second: That the Defendant, knowing

the unlawful purpose of the

plan, willfully joined in it.

OFFENSE CONDUCT

The defendant, HILLARY BERNARD BALDWIN,

admits the United States could prove the

following beyond a reasonable doubt:

Prior to July 29th, MCSO Sergeant Paul

Burch received information from an informant

that “SONNY” and “Jermaine” were making

regular trips to Atlanta, Georgia to purchase

one to two kilograms of cocaine every few

days and bringing the cocaine back to Mobile,

Alabama for distribution. On July 27th,

Sergeant Burch received a call from the

informant that “SONNY” and Jermaine were in

Atlanta purchasing three kilograms of

cocaine. The morning of July 29th, 2008,

Sergeant Burch received information from the

informant that the cocaine was being

transported to a black and white house on

Cawthon Street in Prichard and being

converted into crack cocaine. The informant

also told Sergeant Burch that a gray four

door Dodge Charger was possibly being used to

transport the cocaine.

On July 29th, 2008, MCSO Deputy Raylene

Busby received a call from an anonymous

caller who told her that drugs were coming in

from Atlanta that day and that the two men

who were in possession of the drugs had just

passed through Montgomery, Alabama. The

anonymous caller told Deputy Busby that the

two men were in a gray Dodge Charger that was

an Enterprise Rental Car and that the caller

believed that the car had a Mobile County

license plate. The anonymous caller stated

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that the men would either go to 753 Dr.

Thomas Drive or to the white house with black

trim located at the corner of Faure Street

and Serigny Street once in Mobile. 

Deputy Busby asked the anonymous caller

if the two men had any prior drug convictions

and the anonymous caller replied, “Yes, they

do.” The anonymous caller told Deputy Busby

that the “main one’s” name was HILLARY and

the other man’s name was Jermaine. The

anonymous caller told the Deputy that the two

men were transporting “about two kilograms”

of cocaine.

Deputy Busby relayed this information to

Sergeant Burch who determined that HILLARY

was possibly HILLARY BERNARD BALDWIN (aka:

SONNY). MCSO Deputy Thornton went to the

23.5 mile marker of Interstate 65 and waited

for the vehicle. Deputy Thornton later

learned that the same anonymous caller had

also contacted the Baldwin County Sheriff’s

Office and Deputy Younce (BCSO) with the drug

interdiction unit was dispatched to intercept

the Dodge Charger. At Exit 45 and Interstate

65, in Baldwin County, Alabama, Deputy Younce

observed a gray Dodge Charger go by

southbound on Interstate 65. The Dodge

Charger had tinted windows and Deputy Younce

could not tell who was driving or how many

people were in the vehicle.

Deputy Younce stopped the Dodge Charger

at the 37-mile marker on Interstate 65 for

the tinted windows and approached the

passenger side of the vehicle. After the

window was rolled down, Deputy Younce

observed that the vehicle was occupied by two

males. Deputy Younce asked the driver for

his license and the paperwork for the

vehicle. The driver, HILLARY BERNARD

BALDWIN, handed Deputy Younce the paperwork

for the vehicle and Deputy Younce asked

BALDWIN to step back to the rear of the car

with his driver’s license. Deputy Younce

walked to the rear of the vehicle and tried

to contact backup.

While standing at the rear of the Dodge

Charger, Deputy Younce observed BALDWIN

looking at him in the rear view mirror. 

BALDWIN then placed the vehicle into drive

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and sped away from the traffic stop. Deputy

Younce lost sight of the vehicle as it

entered into Mobile County.

Shortly thereafter, MCSO Deputy Bryan

Hill observed the Dodge Charger southbound

Interstate 65 at a high rate of speed and

noted that the vehicle was driving without

its headlights on. Deputy Hill also observed

the passenger window was down and that the

passenger, later identified as Jermaine

Gaillard, was looking over his left shoulder

toward the rear of the vehicle. Deputy Hill

advised the waiting units that the Dodge

Charger was southbound Interstate 65. Deputy

Hill also observed two Baldwin County

Sheriff’s units in pursuit of the Dodge

Charger.

Deputy Jason Gifford and Deputy Jeff

Eiland became the primary pursuit vehicles

for the MCSO. They began the pursuit around

the 23-mile marker of Interstate 65 and when

the pursuit neared Highway 43, Deputy Johnny

Miller deployed a set of stop sticks and was

able to spike th left front tire. As the

pursuit neared the 15-mile marker Gaillard

threw a kilogram of cocaine from the Dodge

Charger striking Deputy Gifford’s vehicle. 

The pursuit continued onto Interstate 165 and

exited onto the Whistler Street exit. The

Dodge Charger continued to travel on the

Interstate 165 Service Road and eventually

spun out at Bay Bridge Road.

Once the Dodge Charger stopped, BALDWIN

and Gaillard jumped from the vehicle and ran. 

Gaillard, was observed by Satsuma Police

Department Sergeant Brent Guy toss a clearing

[sic] plastic bag to the ground toward the

rear of the Dodge Charger near a retaining

barrier. The clear plastic bag was later

retrieved and contained approximately 40

grams of cocaine. Gaillard and BALDWIN

continued to flee on foot toward the east. 

Deputy Gifford was able to take BALDWIN into

custody.

Deputy Thornton collected approximately

30 grams of cocaine from the interior of the

Dodge Charger. Deputy Hill recovered a small

amount of cocaine from the hood of the Dodge

Charger and from the hood of Deputy Gifford’s

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The Guilty Plea Hearing transcript is not part of the Court

record but was made available by the Court reporter.

10

vehicle. Sergeant Stringer retrieved

approximately 68 grams of cocaine on

Interstate 65 southbound between Baker Road

and Celeste Road.

Sergeant Paul Burch read BALDWIN his

Miranda rights and BALDWIN acknowledged that

he understood his rights by signing a Waiver

of Rights form. BALDWIN told Sergeant Burch

that he and Gaillard were traveling to

Atlanta and purchasing cocaine from an

individual who he identified by name. 

BALDWIN stated that he and Gaillard purchased

nine to twelve ounces of cocaine every few

days and that Gaillard had customers waiting

on the cocaine when they returned from

Atlanta. BALDWIN stated that he sold cocaine

to various individuals “just to pay bills.” 

Sergeant Burch asked BALDWIN how much was

thrown from the vehicle and he replied “just

a few ounces, we only had $2,200.00.”

On July 30th, 2008, Deputy Keith Wilson

returned to the Dodge Charger at the impound

lot and retrieved an additional 14 grams of

cocaine form the vehicle.

BALDWIN admits that the United States

could prove his involvement beyond a

reasonable doubt with 4 kilograms of cocaine.

BALDWIN admits that his prior drug

felony convictions place him in a Career

Offender status under the United States

Sentencing Guidelines.

(Doc. 21, pp. 12-15). Petitioner signed and dated the Factual

Resume on October 21, 2008 (Doc. 21, p. 15). 

At the guilty plea hearing which took place before Judge

DuBose, and at which Baldwin and his attorney were present,

statements were made that Petitioner was a career offender (Plea

Transcript, p. 1, LL. 10-12, 25; p. 2, LL. 1-6).2

 The main

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discussion at the hearing was the possible sentence range Baldwin

faced (Plea Transcript, pp. 1-2, 4, 8). During the hearing,

Judge DuBose had the following colloquy with Petitioner:

THE COURT: Okay. Mr. Baldwin I have to

go through a series of questions to determine

whether you are competent to plea an [sic]

whether there is a voluntarily [sic] plea. 

If you will raise your right hand. First of

all state your full name.

A. Hillary Barnard Baldwin

Q. How old are you?

A. 39.

Q. How far did you go in school?

A. All the way to the 12th.

Q. You can – can you read and write the

English language?

A. Yes, ma’am.

Q. Had any problem communicating with your

attorney?

A. No, ma’am.

Q. Are you fully satisfied with his

representation and advice to you?

A. Yes, ma’am.

Q. Have you ever been treated for any type

of mental illness?

A. No, ma’am.

Q. Have you ever been treated for drug

addiction?

A. No, ma’am.

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Q. All right. Have you received a copy of

the charge against you and discussed it

fully with your attorney?

A. Yes, ma’am.

Q. All right. Has anybody tried to force

you to plea guilty today?

A. No, ma’am.

Q. Now, you are pleading guilty to a plea

agreement and the way I understand the

plea agreement is in return for your

guilty plea to Count one the government

is going to recommend that you receive

the low end of the guidelines and if you

substantially cooperate with the

government they are going to ask me to

go below those guidelines. Is that the

way you understand it?

A. Yes, ma’am.

Q. Did you read that plea agreement before

you signed it?

A. Yes, ma’am.

Q. And also in the plea agreement you are

waiving your right to appeal any

sentence that I give you, do you

understand that?

A. Yes, ma’am.

Q. Now, as far as your sentence goes do you

understand that you are subject to a

ten-year mandatory to life sentence?

A. Yes, ma’am.

Q. $4 million fine, five years supervised

release and hundred dollars special

assessment?

A. Yes, ma’am.

Q. Now, when I tell you that its [sic]

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mandatory I have no choice but to give

you ten-years unless you substantially

cooperate with the government and they

file a motion telling me that. You

understand that?

A. Yes, ma’am.

***

Q. You have a right to plead not guilty,

you will have a trial, the government

would have to prove your guilt beyond a

reasonable doubt. At trial you would

have the right to assistance of counsel,

you will have the right to cross-examine

the government witnesses. You would

have the right to compel witnesses on

your own behalf, to testify for you. 

You also would have the right to choose

to testify or not testify. But do you

understand give pleading [sic] guilty

today there will not be a trial you

understand that?

A. Yes, ma’am.

Q. And you are giving up those

constitutional rights?

A. Yes, ma’am.

Q. Is that what you want to do?

A. Yes, ma’am.

(Plea Transcript, p. 2, L. 11 - p. 5, L. 21). Following this,

the Government recited the elements of the crime with which

Baldwin had been charged as well as the facts that it would rely

on at trial to prove his guilt (Plea Transcript, p. 5, L. 22 - p.

7, L. 10). Following the Government’s statements, the Judge

against questioned Petitioner as follows:

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THE COURT: Do you agree the government

could prove those facts against you Mr.

Baldwin.

A. Yes, ma’am.

THE COURT: Okay. Then how do you

plead.

A. Guilty.

THE COURT: It’s the finding of the

Court in the case of Hillary Barnard Baldwin

that the defendant is fully competent and

capable of entering an informed plea. That

the defendant is aware of the nature of the

charges and the consequences of the plea. 

The plea of guilty is a knowing and voluntary

plea supported by independent an [sic] basis

in fact containing each of the he [sic]

essential elements of the offense the plea is

therefore accepted and the defendant is now

adjudicated guilty of the offense. I just

want to make sure I see you talking with your

attorney. Are you comfortable with what the

government said.

A. Yes, ma’am.

(Plea Transcript, p. 7, L. 11 - p. 8, L. 2). 

Looking to Monroe for guidance, the Court notes that

Baldwin, in previous proceedings before the Court, specifically

stated the following: (1) that his plea was not coerced, both in

the Agreement (Doc. 21, ¶ 9) and at the time of the hearing (Plea

Transcript, p. 3, LL. 16-18); (2) that he understood the nature

of the charges against him (Doc. 21, ¶¶ 6-7 and p. 12; Plea

Transcript, pp. 6-7); and (3) that he was aware of the direct

consequences of his plea (Doc. 21, ¶¶ 10-15; Plea Transcript, p.

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4, L. 5 - p. 5, L. 2). Monroe, 353 F.3d at 1354. In addition to

these things, the Court notes that, during the plea colloquy,

Judge DuBose informed Baldwin of the rights he was waiving by

pleading guilty and he stated that he understood that he was

giving them up (Plea Transcript, p. 5, LL. 8-21). Petitioner

also agreed that the government could prove a set of facts which

would render him guilty of the charge against him (Plea

Transcript, p. 6, L. 22 - p. 9, L. 6). Finally, it is clear that

Baldwin had been informed that he faced the possibility of a

sentence which exceeded ten years (Doc. 21, ¶ 10), especially

since he was a career offender (Plea Transcript, p. 1, LL. 10-12,

25; p. 2, LL. 1-10). As noted earlier, Judge DuBose found

Baldwin to be “fully competent and capable of entering an

informed plea [and that he was] aware of the nature of the

charges and the consequences of the plea. The plea of guilty is

a knowing and voluntary plea supported by independent an [sic]

basis in fact containing each of the he [sic] essential elements

of the offense” (Plea Transcript, p. 7, LL. 17-22).

After review of the pleadings of record and the arguments

made, the Court concludes that Baldwin was fully informed that

his prior convictions were going to be used to enhance his

sentence. The Court further finds that the record belies his

assertion that there was no factual basis for the plea. The

Court finds that Petitioner’s guilty plea was knowing and

voluntary; any assertion otherwise is without evidentiary

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support.

Petitioner has also claimed that his attorney rendered

ineffective assistance. More specifically, Baldwin asserts that

his attorney did not object to the enhancement of his sentence

because of his prior convictions and then failed to withdraw the

plea or appeal the sentence once he realized the range of his

sentence (Doc. 33).

In Strickland v. Washington, 466 U.S. 668 (1984), the United

States Supreme Court defined the showing a habeas petitioner must

make to prevail on an ineffective assistance claim:

First, the defendant must show that counsel's

performance was deficient. This requires

showing that counsel made errors so serious

that counsel was not functioning as the

"counsel" guaranteed the defendant by the

sixth amendment. Second, the defendant must

show that the deficient performance

prejudiced the defense. This requires

showing that counsel's errors were so serious

as to deprive the defendant of a fair trial,

a trial whose result is reliable. Unless a

defendant makes both showings, it cannot be

said that the conviction . . . resulted from

a breakdown in the adversary process that

renders the result unreliable. 

Id. at 687.

The Court has already found that Petitioner’s assertion that

his plea was unknowing and involuntary because of the enhancement

of his sentence in light of his prior criminal record was not

supported by the record. The claim gains no momentum dressed as

an ineffective assistance of counsel claim.

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Specifically, the Court has already determined that Baldwin

was informed, at the time that he entered into his Plea

Agreement, that his sentence would be, at a minimum, ten years

and that his prior convictions would affect the ultimate length

of it. As Petitioner was aware of this, his attorney cannot be

found to have been deficient for not telling him. Because

Petitioner cannot prove one prong of the Strickland analysis, it

is unnecessary to analyze the second (prejudice) prong. The

evidentiary record does not support Baldwin’s claim that his

attorney rendered ineffective assistance.

Furthermore, pursuant to Rule 11(a) of the Rules Governing §

2254 Cases, the undersigned recommends that a certificate of

appealability (hereinafter COA) in this case be denied. 28

U.S.C. foll. § 2254, Rule 11(a) (“The district court must issue

or deny a certificate of appealability when it enters a final

order adverse to the applicant.”). The habeas corpus statute

makes clear that an applicant is entitled to appeal a district

court’s denial of his habeas corpus petition only where a circuit

justice or judge issues a COA. 28 U.S.C. § 2253(c)(1). A COA

may issue only where “the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. §

2243(c)(2). 

The Court has already determined, herein, that Petitioner

has failed to demonstrate that any of his constitutional rights

have been denied. Therefore, Petitioner should be denied a

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certificate of appealability.

CONCLUSION

Baldwin has raised two claims in this petition; both are

without merit. Therefore, it is recommended that the petition be

denied, that this action be dismissed, and that judgment be

entered in favor of the Respondent, the United States of America,

and against the Petitioner Hillary Bernard Baldwin. It is

further recommended that it be found that Baldwin is not entitled

to a certificate of appealability and, therefore, is not entitled

to appeal in forma pauperis.

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within ten days of the date of service of

this document, file specific written objections with the clerk of

court. Failure to do so will bar a de novo determination by the

district judge of anything in the recommendation and will bar an

attack, on appeal, of the factual findings of the magistrate

judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d

736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404

(5th Cir. Unit B, 1982)(en banc). The procedure for challenging

the findings and recommendations of the magistrate judge is set

out in more detail in SD ALA LR 72.4 (June 1, 1997), which

provides that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing

a “Statement of Objection to Magistrate Judge’s

Recommendation” within ten days after being served with

a copy of the recommendation, unless a different time

is established by order. The statement of objection

shall specify those portions of the recommendation to

which objection is made and the basis for the

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objection. The objecting party shall submit to the

district judge, at the time of filing the objection, a

brief setting forth the party’s arguments that the

magistrate judge’s recommendation should be reviewed de

novo and a different disposition made. It is

insufficient to submit only a copy of the original

brief submitted to the magistrate judge, although a

copy of the original brief may be submitted or referred

to and incorporated into the brief in support of the

objection. Failure to submit a brief in support of the

objection may be deemed an abandonment of the

objection.

A magistrate judge’s recommendation cannot be appealed to a

Court of Appeals; only the district judge’s order or judgment can

be appealed.

2. Transcript (applicable where proceedings tape recorded). 

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the

magistrate judge finds that the tapes and original records in

this action are adequate for purposes of review. Any party

planning to object to this recommendation, but unable to pay the

fee for a transcript, is advised that a judicial determination

that transcription is necessary is required before the United

States will pay the cost of the transcript.

DONE this 8th day of April, 2010.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

Case 1:08-cr-00275-KD-M Document 36 Filed 04/09/10 Page 19 of 19