United States District Court, N.D. West Virginia
MICHAEL J. PAVLOCK, Petitioner,
UNITED STATES OF AMERICA, Respondent. Criminal Action No. 1:10CR07-1
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 40], DENYING PETITION FOR HABEAS
CORPUS PURSUANT TO § 2255 [DKT. NO. 1], AND DENYING
CERTIFICATE OF APPEALABILITY
M. KEELEY UNITED STATES DISTRICT JUDGE
April 21, 2014, the petitioner, Michael J. Pavlock
(“Pavlock”), filed a motion pursuant to 28 U.S.C.
§ 2255 to vacate, set aside, or correct sentence
(“Petition”) (Dkt. No. 1). Pavlock claims he was
deprived of his Sixth Amendment right to effective assistance
of appellate counsel (Dkt. Nos. 35-1 at 2; 35-2 at 2).
Pursuant to 28 U.S.C. § 636 and LR PL P 2, the Court
referred the Petition to the Honorable Robert W. Trumble,
United States Magistrate Judge, for initial review. On August
11, 2016, Magistrate Judge Trumble filed a Report and
Recommendation (“R&R”), recommending that the
Petition be denied and dismissed with prejudice (Dkt. No.
receiving an extension of time in which to object, Pavlock
filed timely objections to the R&R on September 15, 2016
(Dkt. Nos. 45; 46; 48; 49). Following due consideration of
the R&R and Pavlock's objections, the Court
OVERRULES the objections (Dkt. Nos. 48; 49),
ADOPTS the R&R (Dkt. No. 40),
DENIES the Petition, and
DISMISSES it WITH PREJUDICE
(Dkt. No. 1).
Conviction, Sentence, and Appeal
January 5, 2010, a grand jury in the Northern District of
West Virginia returned a fifteen count indictment alleging
that Pavlock was the architect of a financial scheme dubbed
the “1999 Settlement Agreement” (Dkt. Nos. 1; 497
at 245-46). Counts One through Twelve charged wire fraud in
violation of 18 U.S.C. §§ 1343 and 2; Counts
Thirteen through Fifteen charged false entries in a
bankruptcy document in violation of 18 U.S.C. §§
1519 and 2 (Dkt. No. 1). At the conclusion of an eight-day
trial, on December 20, 2010, the jury convicted Pavlock on
all counts (Dkt. No. 293).
August 22, 2011, the Court sentenced Pavlock to 324 months of
imprisonment, followed by three years of supervised release
(Dkt. No. 434). The lengthy prison term was in part a
consequence of the application of two enhancements under the
United States Sentencing Guidelines (“U.S.S.G.”).
The Court applied a two-level enhancement pursuant to
U.S.S.G. § 3B1.3 after finding that Pavlock had abused a
position of trust. It also applied an additional two-level
enhancement under U.S.S.G. § 3A1.1(b)(1) after finding
that the offense involved a vulnerable victim (Dkt. No. 497
at 245-46, 257-58).
Pavlock appealed (Dkt. No. 446), challenging the sufficiency
of the evidence, the Court of Appeals for the Fourth Circuit
affirmed his conviction on September 20, 2012. United
States v. Pavlock, 494 F. App'x 366 (4th Cir. 2012)
(unpublished decision). Following this unsuccessful appeal,
Pavlock twice unsuccessfully petitioned the Supreme Court of
the United States for a writ of certiorari (Dkt. No.
35 at 2-3).
§ 2255 Petition
habeas petition, filed on April 21, 2014, asserted 45 grounds
for relief (Dkt. No. 1). Thereafter, Magistrate Judge Trumble
permitted Pavlock to withdraw or waive various grounds for
relief. In order to avoid confusion, Magistrate Judge Trumble
also directed Pavlock to re-file his Petition and
specifically identify the grounds for relief that he intended
to pursue (Dkt. No. 29). Pavlock did so on August 9, 2016,
refining his Petition to assert only two grounds for relief,
each of which alleged ineffective assistance of his counsel
on direct appeal (Dkt. No. 35).
claims that his appellate counsel failed to challenge the
Court's application of the “position of
trust” and “vulnerable victim” enhancements
under the guidelines (Dkt. Nos. 35-1 at 2; 35-2 at 2), and
seeks a “[n]ew appeal, new trial, [and] remand for
resentencing” (Dkt. No. 35 at 13).
Report and Recommendation
R&R recommended that the Court deny the Petition (Dkt.
No. 40 at 10). Magistrate Judge Trumble reviewed the findings
made at Pavlock's sentencing hearing and concluded the
Court had properly applied the sentencing enhancements at
issue when it increased Pavlock's guideline range.
Id. at 6, 8. He therefore concluded that Pavlock
“cannot establish that his counsel was ineffective for
failing to raise a meritless argument.” Id. at
STANDARDS OF REVIEW
Magistrate Judge's R&R
reviewing a magistrate judge's R&R made pursuant to
28 U.S.C. § 636, the Court must review de novo
only the portions of the R&R to which an objection is
timely made. 28 U.S.C. § 636(b)(1)(C). Otherwise,
“the Court may adopt, without explanation, any of the
magistrate judge's recommendations to which the prisoner
does not object.” Dellacirprete v. Gutierrez,
479 F.Supp.2d 600, 603-04 (N.D. W.Va. 2007) (citing Camby
v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts
will uphold those portions of a recommendation to which no
objection has been made unless they are “clearly
erroneous.” See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
Pro Se Pleadings
Court must liberally construe pro se pleadings.
Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe
v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978). A
pro se petition is subject to dismissal, however, if
the Court cannot reasonably read the pleadings to state a
valid claim on which the plaintiff could prevail. Barnett
v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A
court may not construct the petitioner's legal arguments
for him, nor should it “conjure up questions never
squarely presented.” Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
28 U.S.C. § 2255(a), a prisoner may move his sentencing
court “to vacate, set aside or correct” a
sentence if he claims it “was imposed in violation of
the Constitution or laws of the United States.” A
prisoner's sentence violates the Constitution if he was
deprived of his Sixth Amendment right to the effective
assistance of appellate counsel. See Richardson v.
Branker, 668 F.3d 128, 139 n.10 (4th Cir. 2012). In
Strickland v. Washington, the Supreme Court of the
United States articulated the now-familiar two-prong test for
assessing the assistance of counsel. 466 U.S. 668 (1984). In
order to establish a violation of his Sixth Amendment rights,
a defendant must demonstrate “that counsel's
performance was deficient” and “that the
deficient performance prejudiced the defense.”
Id. at 687.
“performance prong” requires establishing that
“counsel's representation fell below an objective
standard of reasonableness.” Id. at 687-88.
There is a “strong presumption” that the conduct
at issue is reasonable on the “wide range of reasonable
professional assistance.” Id. at 689.
Appellate counsel's performance is deficient, however,
when he fails to raise issues on appeal that are clearly
stronger than those actually asserted. See Smith v.
Robbins, 528 U.S. 259, 288 (2000).
the “prejudice prong, ” the defendant must
establish that “there is a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different.”
Strickland, 466 U.S. at 694. When the defendant
claims ineffective assistance of appellate counsel, he must
demonstrate a reasonable probability that he would have
prevailed on direct appeal had his counsel provided
objectively reasonable representation. United States v.
Rangel, 781 F.3d 736, 745 (4th Cir. 2015) (citing
Smith, 528 U.S. at 285-86).
Court is free to bypass analysis of the performance prong if
it considers the prejudice prong dispositive. See
Strickland, 466 U.S. at 697 (“If it is easier to
dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that
course should be followed.”). In regard to guideline
calculations, the Fourth Circuit reviews legal conclusions
de novo and factual findings for clear error.
United States v. McKenzie-Gude, 671 F.3d 452, 463
(4th Cir. 2011).