SUPPLEMENTAL REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ, Magistrate Judge.
This case is before the Court on Defendant's Objections (Doc. No. 67) to the Magistrate Judge's Report and Recommendations (Doc. No. 58), recommending that Defendant's § 2255 Motion (Doc. No. 57) be denied. Judge Rose has recommitted the case for reconsideration in light of the Objections (Doc. No. 68).
Eziolisa's first objection is that he never received a copy of the Report and Recommendations (Doc. No. 58). The docket corroborates this claim. The Report was sent to Eziolisa at the Gilmer Federal Correctional Institution at Glenville, West Virginia (See Notice of Electronic Filing for July 22, 2013). Eziolisa's correct address is FCI Milan in Milan, Michigan. Although this piece of mail has not been returned by the Postal Service, it was a clerk's error to send it to FCI Gilmer and Eziolisa's Objections should be treated as timely made. Therefore the Order Adopting the Report and Recommendations and the Judgment entered thereon (Doc. Nos. 62 and 64) should be VACATED.
On the merits, Eziolisa objects for three reasons which will be examined in turn.
First, Eziolisa claims his instant § 2255 Motion (Doc. No. 57) is timely under § 2255(f)(3) because Alleyne v. United States . 570 U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), created a new right which is applicable to cases on collateral review.
In the Report, the Magistrate Judge agreed with Eziolisa that this Court must decide the retroactivity question in the first instance. (Report, Doc. No. 58, PageID 269, relying on Wiegard v. United States, 380 F.3d 890 (6th Cir. 2004).) The Report also agreed with Eziolisa that Alleyne created a new right because it expressly overruled prior controlling Supreme Court precedent, Harris v. United States, 536 U.S, 545 (2002). Id. at PageID 271. However, the Report also found that Alleyne did not come within either of the two narrow exceptions regarding applying a new rule to cases on collateral review because it did not (1) "place any primary conduct beyond the power of the United States to punish, " (2) did not "interpret a federal statute as not reaching certain conduct at all, " and (3) was not a "watershed" rule within the meaning of Teague v. Lane , 489 U.S. 288, 301 (1989). (Report, Doc. No. 58, PageID 271-72.)
Second, Eziolisa "argues firmly that Alleyne applies to plea negotiations and is therefore applicable to the guilty plea conviction in the case at bar" and that therefore the element of "brandishing a firearm, " which produced an enhanced penalaty in this case "must be found by the jury beyond a reasonable doubt." (Objections, Doc. No. 67, PageID 309.) In contrast, the Report found that facts admitted in a guilty plea fall outside the Apprendi line of cases, of which Alleyne is the latest (Report Doc. No. 58, PageID 272).
Eziolisa objects that because he was not advised of his Sixth Amendment right to a jury verdict on the mandatory minimum sentence, his plea is invalid. (Objections, Doc. No. 67, PageID 309), citing Bousley v. United States, 523 U.S. 614 (1998). There are many fallacies with this argument. First of all, Bousley itself holds that the voluntariness and intelligence of a plea can be challenged on collateral attack only if first challenged on direct appeal. Id ., citing Reed v. Farley , 512 U.S. 339, 354 (1994). Eziolisa did not do so. Second, Eziolisa ignores the content of the plea colloquy, where he admitted pointing the gun at the credit unions' employees and where it was explained to him that the admission of brandishing would indeed increase the mandatory minimum sentence on Count 2 to seven years (Transcript, Doc. No. 36, PageID 114). Last, Eziolisa misses the fact that his plea was taken before the undersigned Magistrate Judge who recommended that the plea be found to be knowing, intelligent, and voluntary (Report, Doc. No. 25). Eziolisa made no objections and Judge Rose adopted that Report (Order, Doc. No. 26). Failure to object to a report and recommendations waives error. See United States v. Walters , 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn , 474 U.S. 140 (1985).
Eziolisa's Objections are timely because he was not properly sent a copy of the Report. Therefore the Order Adopting the Report and Recommendations and the Judgment entered thereon (Doc. Nos. 62 and 64) should be VACATED.
However, the Objections are without merit. Alleyne does not apply retroactively to cases on collateral review. Even if it did, it would not authorize relief here because Eziolisa admitted the fact - brandishing a firearm - which raised the mandatory minimum on Count 2 from five to seven years.
Because reasonable jurists would not disagree with these conclusions, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit ...