United States District Court, N.D. West Virginia, Elkins
WINSTON R. IRONS, Petitioner,
UNITED STATES OF AMERICA, Respondent. Criminal Action No. 2:12-CR-16 (BAILEY)
ORDER ADOPTING REPORT AND RECOMMENDATION
PRESTON BAILEY UNITED-STATES DISTRICT JUDGE.
day, the above-styled matter came before this Court for
consideration of the Report and Recommendation of United
States Magistrate Judge Robert W. Trumble [Civ. Doc. 13;
Crim. Doc. 175]. Pursuant to this Court's Local Rules,
this action was referred to Magistrate Judge Trumble for
submission of a proposed report and recommendation
(“R&R”). Magistrate Judge Trumble filed his
R&R on August 9, 2016, wherein he recommends this Court
deny and dismiss the petitioner's § 2255 motion.
to 28 U.S.C. § 636(b)(1)(c), this Court is required to
make a de novo review of those portions of the
magistrate judge's findings to which objection is made.
However, the Court is not required to review, under a de
novo or any other standard, the factual or legal
conclusions of the magistrate judge as to those portions of
the findings or recommendation to which no objections are
addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985).
In addition, failure to file timely objections constitutes a
waiver of de novo review and the right to appeal
this Court's Order. 28 U.S.C. § 636(b)(1);
Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.
1989); United States v. Schronce, 727 F.2d 91, 94
(4th Cir. 1984). Here, objections to Magistrate Judge
Trumble's R&R were due within fourteen (14) days of
service, pursuant to 28 U.S.C. § 636(b)(1) and
Fed.R.Civ.P. 72(b). The docket reflects that service was
accepted on August 15, 2016. [Civ. Doc. 14; Crim. Doc. 175].
The petitioner timely filed his Objections on August 26,
2016. [Civ. Doc. 15 / Crim. Doc. 177]. Accordingly, this
Court will review the portions of the R&R to which the
petitioner objects under a de novo standard of
review. The remainder of the R&R will be reviewed for
August 1, 2012, the petitioner was convicted by a jury as to
both Count 1 & 2 of the Indictment, Possession with
Intent to Distribute Cocaine, in violation of 18 U.S.C.
§ 841(a)(1), and Possession with Intent to Distribute
Less than 50 Kilograms of Marijuana, in violation of 18
U.S.C. § 841(a)(1). [Crim. Doc. 81]. On October 23,
2012, the petitioner was sentenced to a term of 240
months' imprisonment on Count 1 and a term of 60
months' imprisonment on Count 2, to be served
concurrently with one another [Crim. Doc. 114]. The
petitioner filed a direct appeal, and the Fourth Circuit
affirmed the District Court's judgment by per
curiam opinion on August 6, 2013 [Crim. Doc. 135].
Certiorari was denied on November 8, 2013.
November 24, 2014, the petitioner filed a Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody. [Civ. Doc. 1; Crim. Doc.
147]. Therein, the petitioner alleges: (1) ineffective
assistance of trial counsel, (2) ineffective assistance of
appellate counsel, and (3) that he is being sentenced in
violation of Alleyne and USSG § 4B1.1's
career offender provision. The R&R thoroughly addressed
each argument and found each to be procedurally barred or
lacking in merit. Petitioner filed several points of
objection to the R&R, which this Court will address in
first two objections claim that because the magistrate judge
did not address two recently submitted affidavits - that of
the petitioner and James Ours - the magistrate judge
“acknowledges it as a fact of law.” This Court
will attempt to address these objections if it must. First,
the “Affidavits” are unsworn. Second, they are
dated after the trial and conviction occurred. As for the
petitioner's Affidavit, it is clearly self serving. As to
James Ours', all it declares is that a guy named
“Tony” was bringing narcotics to Buckhannon. It
is not clear what value the Ours Affidavit is supposed to
have; this Court only notes that the petitioner's alias
is “Tony.” These objections are OVERRULED.
next asserts that his sentencing was unreasonable and could
have and should have been pursued on appeal; therefore, he
argues it should not be procedurally barred. Although
procedurally barred, the R&R nevertheless addresses this
claim under an ineffective assistance of counsel analysis.
Petitioner thus asserts in the alternative that
“counsel never adhered to the concerns of the
petitioner and thus no issue petitioner thought relevant was
ever included in counsel's appeal.” [Doc. 15 at 2].
The petitioner fails to expand, however, on what matters he
believed were relevant or what he asked counsel to pursue but
did not. This Objection is OVERRULED.
next asserts that trial counsel was ineffective for his
alleged failure to investigate, develop, and present a
material witness, Mary Jones. Petitioner asserts that Ms.
Jones would have testified that she was present during the
October 5, 2011, traffic stop. The evidence presented at
trial, however, clearly established that Mary Jones was not
present at the stop, that petitioner was seen driving the car
on a revoked license for DUI, and that petitioner tossed a
container of what was discovered to be cocaine to the floor
during the traffic stop. See Docs. 132 & 133. This Court
finds that any failure to call Mary Jones as a witness was
not deficient or prejudicial. This objection is OVERRULED.
next objects that counsel never objected to the identity of
the person in the 404(b) video evidence. As the magistrate
judge correctly noted in the R&R, however, defense
counsel filed a Motion to Suppress 404(b) evidence, which
this Court denied. This decision was also appealed and
affirmed. Counsel's performance was not deficient. This
Objection is OVERRULED.
next “objection” is posed as the following
question: “Was the Indictment signed by the U.S.
Attorney?” To the extent that this is an objection, the
same is OVERRULED as the Indictment was signed by Assistant
United States Attorney Andrew Cogar.
petitioner asserts counsel failed to challenge that the
Government engaged in misconduct by using visual aids during
opening argument and that counsel failed to question why this
case was brought in Federal Court as opposed to state court.
First, visual aids are permitted in this Court's
discretion, and the jury was properly instructed that
arguments of counsel, which certainly includes visual aids,
are not evidence, nor were they permitted in the jury room
for deliberations. See United States v. Waddell, 62
Fed.Appx. 491 (4th Cir. 2003). This Objection is OVERRULED.
the petitioner's claim of selective prosecution, the
petitioner must show discriminatory effect and discriminatory
purpose. See United States v. Olvis, 97 F.2d 739,
743 (4th Cir. 1996). Petitioner's main argument is that
because state law enforcement made the arrest, the charges
should have been brought in state court. Petitioner cites no
law in support of his position. The petitioner committed
federal crimes; therefore, this Court had jurisdiction, a