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Pavlock v. United States

United States District Court, N.D. West Virginia

April 14, 2017

UNITED STATES OF AMERICA, Respondent. Criminal Action No. 1:10CR07-1



         On 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. 40).

         After 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).

         I. BACKGROUND

         A. Conviction, Sentence, and Appeal[1]

         On 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).

         On 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).

         After 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).

         B. § 2255 Petition

         Pavlock's 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).

         Pavlock 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).

         C. Report and Recommendation

         The 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 8-9.


         A. Magistrate Judge's R&R

         When 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).

         B. Pro Se Pleadings

         The 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).


         Under 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.

         The “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).

         Under 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).

         The 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.”).[2] 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).

         IV. ...

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