United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS CHIEF JUDGE.
before the Court is Movant's Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside or Correct Sentence by a
Person in Federal Custody (ECF No. 237). By Standing
Order, the Motion was first assigned to Magistrate Judge R.
Clarke VanDervort (ECF No. 239) for submission of proposed
findings of fact and a recommendation for disposition
pursuant to 28 U.S.C. § 636(b)(1)(B). The matter was
subsequently assigned to Magistrate Judge Omar J. Aboulhosn
(ECF No. 257) on January 6, 2016. The Magistrate Judge issued
the Proposed Findings and Recommendation (PF&R) on March
14, 2017, concluding that Movant's Motion should be
denied. See PF&R, ECF No. 274, at 38. Movant
timely filed six objections to these findings. See
Obj., ECF No. 287. For the following reasons, the Court
OVERRULES Movant's objections, ACCEPTS and INCORPORATES
herein the Magistrate Judge's findings and
recommendations, and DENIES Movant's Motion (ECF No. 237)
without issuing a certificate of appealability.
Court conducts a de novo review of those portions of
the Magistrate Judge's report to which a party objects.
See 28 U.S.C. § 636(b)(1)(C) (“A judge of
the court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendation to which objection is made. A judge of the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate.”).
The Court, however, is not required to review, under a de
novo or other standard, the factual or legal conclusions
of the Magistrate Judge as to those portions of the findings
or recommendations to which no objection is made. See
Thomas v. Arn, 474 U.S. 140, 150 (1985). Movant has made
six objections to the PF&R, and the Court will address
each in turn.
Movant objects to the PF&R's legal conclusion that
Assistant Federal Public Defender Ed Weis's (Weis)
representation did not constitute ineffective assistance of
counsel. See Obj., ECF No. 287, at 2-3. Under this
objection, Movant makes multiple arguments as to why the
Court should consider Weis's representation ineffective.
Movant argues that Weis wrongly advised Movant on the
potential guideline range faced if Movant pleaded guilty,
accounting for a possible armed career offender enhancement.
Id. at 2. Movant blames this incorrect advice for
his decision to go to trial, which resulted in five
convictions and a longer sentence. Id. at 3. Movant
argues that Weis's ineffectiveness further cost Movant
the acceptance of responsibility points, which increased his
sentence. Id. at 3.
successful claim for ineffective assistance of counsel is a
hard standard to meet. Under the Strickland v.
Washington test, a defendant must demonstrate that the
counsel representation fell below an objective standard of
reasonableness and that the result of the proceeding would
have been different if not for the ineffectiveness. 466 U.S.
668, 687 (1984). “Judicial scrutiny of counsel's
performance must be highly deferential.” Id.
at 689. The bulk of Movant's disagreement with Weis's
representation stems from the fact that the Government used
the Stipulation of Facts at trial. The Fourth Circuit already
addressed this argument and found that the admission of the
stipulation was harmless because the evidence against Movant
was overwhelming at trial. See United States v.
Persons, 548 F. App'x 861, 865 (4th Cir. 2013). As
the Fourth Circuit already dismissed those concerns on direct
appeal, this Court will only consider novel arguments as to
Weis's purported ineffectiveness. See Boeckenhaupt v.
United States, 537 F.2d 1182, 1183 (4th Cir. 1976)
(refusing to reconsider arguments made on direct appeal in a
the Court reviews Movant's objections regarding the
incorrect advice, which resulted in a higher sentence by
taking the case to trial and the loss of acceptance of
responsibility points. Although Movant continues to blame
Weis for his decision to go to trial and face higher
penalties, these objections are without merit. An attorney is
not considered ineffective for providing a defendant an
estimate of a sentencing guideline range, even if the
calculations turn out to be incorrect. See United States
v. Foster, 68 F.3d 86, 87-88 (4th Cir. 1995) (finding
wrong advice of guideline range not prejudicial when court
warned defendant of potential sentence); Harper v. United
States, 661 F.Supp.2d 587, 600 (N.D. W.Va. 2009)
(finding that the “miscalculation or erroneous sentence
estimation by defense counsel is not a constitutionally
deficient performance rising to the level of ineffective
assistance of counsel” (citation omitted)); Randall
v. United States, 2014 WL 4311043, at *6 (W.D. N.C.
Sept. 2, 2014) (recognizing that informed mistakes are not
ineffective assistance). The Court finds that Weis's
prediction, that Movant's conviction for “failure
to comply” would serve as a predicate offense for the
armed career offender enhancement, was reasonable based on
Weis's interpretation of Sykes v. United States
at the time. 564 U.S. 1, 4 (2011) (classifying fleeing from
an officer by vehicle as a violent felony for the statutory
enhancement under the Armed Career Criminal Act). The Court
must review counsel's decisions at the time the decisions
were made rather than look through the lens of
hindsight. See Strickland, 466 U.S. at 689.
Based on all the information provided and a review of the
record, Weis's advice did not fall below the objective
standard of reasonableness. Further, Movant decided
voluntarily to proceed with trial knowing that the
Stipulation of Facts could enter into evidence. See
PF&R, ECF No. 274, at 13 (describing this
Court's specific warning to Movant before testifying at
trial). The PF&R goes into a deeper analysis as to why
Weis's representation remains within the standard of
reasonableness, and the Court agrees with the Magistrate
Judge's conclusions. See Id. at 14-18.
Therefore, rather than repeat the analysis here, the Court
ADOPTS and INCORPORATES herein the Magistrate Judge's
legal analysis regarding Weis's representation.
Court also previously explained during sentencing why Movant
would not have received acceptance of responsibility points
for a reduced sentence. See Id. at 13 (quoting
sentencing transcript). Acceptance of responsibility points
typically apply when a defendant pleads guilty and eases the
burden of the government from going through trial.
See U.S. Sentencing Guidelines Manual § 3E1.1
cmt. n.3 (U.S. Sentencing Comm'n 2011). However, the
points can also attach after trial if the defendant
“clearly demonstrate[s] an acceptance of responsibility
for his criminal conduct.” Id. at cmt. n.2.
Movant continues to shift the blame of his actions to other
people as evidenced by the arguments espoused in the direct
appeal and this habeas petition. As the Court stated at
sentencing, Movant “tried to blame this on everybody
else.” PF&R, ECF No. 274, at 13. Even
after trial, Movant could not accept the responsibility of
his actions, and, thus, a reduction in points for acceptance
of responsibility was not warranted. Accordingly,
Movant's first objection on the effectiveness of
Weis's representation is OVERRULED.
Movant objects to the PF&R's legal conclusion that
Attorney Richard Weston's (Weston) representation did not
constitute ineffective assistance of counsel for failing to
produce a witness at trial. See Obj., ECF No. 287,
at 4. Movant argues that “Mills was the main witness
for Persons['s] defence [sic]” and that Weston was
ineffective for failing to produce him. Id. However,
the record shows that Weston attempted to subpoena Mills, a
confidential informant, and the Government likewise tried to
call him to the stand. See PF&R, ECF No. 274, at
19. Neither party was able to locate Mills, and Movant had
the opportunity to cross examine the other witnesses brought
to testify against him, including another confidential
informant participating in the drug transactions.
Id. at 20. The actions by the trial attorney do not
fail to reach the objective bounds of reasonableness, and
Movant cannot support a claim for ineffective assistance of
counsel under Strickland. Accordingly, the Court
OVERRULES Movant's objections regarding Weston's
Movant objects to the legal conclusion that Attorney Jane
Moran's (Moran) representation did not constitute
ineffective assistance of counsel when she purportedly lied
to the appellate court. See Obj., ECF No. 287, at 4.
Movant states that Moran lied regarding the wiretap
authorizations, confrontation issues, and filing of the writ
of certiorari. Id. Movant's Motion makes clear
that he believes Moran failed to raise pertinent
constitutional issues to the appellate court and file his
writ of certiorari, but these assertions cannot sustain an
ineffective assistance of counsel argument. See
Movant's Mot. Under 28 U.S.C. § 2255 to
Vacate, Set Aside or Correct Sentence by a Pers. in Fed.
Custody, ECF No. 237, at 60-61. Appellate attorneys have
the discretion to determine which arguments best present a
defendant's case on appeal, and a court will not find the
attorney ineffective for not presenting all possible
arguments. See Jones v. Barnes, 463 U.S. 745, 751
(1983) (explaining that no decision by the Supreme Court
“suggests … that the indigent defendant has a
constitutional right to compel appointed counsel to press
nonfrivolous points requested by the client, if counsel, as a
matter of professional judgment, decides not to present those
points”). Moran's decisions to not pursue alleged
violations of the wiretap act and the inability to confront
Mills on the stand were made in her professional judgment.
Moreover, as previously explained, the inability to confront
Mills could not hold the trial attorney, Weston, ineffective
and, thus, cannot hold Moran ineffective as appellate
counsel. See United States v. Cook, 45 F.3d 388, 392
(10th Cir. 1995) (abrogated on other grounds by Neill v.
Gibson, 278 F.3d 1044, 1057 n.5 (10th Cir. 2001)).
Regarding the filing of a writ for certiorari, the Fourth
Circuit docket shows that Moran filed the writ before
requesting withdrawal as counsel. See United States v.
Persons, 12-4954, ECF No. 65 (4th Cir. 2012). However,
even if such writ was not filed, the failure to do so would
not amount to an ineffective assistance of counsel,
especially when Moran determined that such filing would be
meritless. See United States v. Dill, 555 F.Supp.2d
514, 519 (E.D. Pa. 2008) (“Since Defendant had no
constitutional right to counsel to pursue his discretionary
appeals, his attorney's failure to petition for a writ of
certiorari cannot form the basis for a constitutional
violation.”); Rickard v. United States, Civ.
No. 10-2089 (JLL), 2011 WL 3610413, at *9 (D.N.J. Aug. 16,
2011) (finding that the failure to file a writ could not
prejudice defendant without showing reasonable probability
that the Supreme Court would grant writ and change
disposition). Movant has not argued why his writ of
certiorari would have been granted or successful.
Accordingly, the Court finds that Moran's representation
did not fall under the objective standard of reasonableness
and did not prejudice Movant. Therefore, the Court OVERRULES
Movant objects to the conclusion that the sentence for felon
in possession and enhancement for gun possession were proper.
See Obj., ECF No. 287, at 4. Movant states that the
sentence went outside the guideline range and over the
statutory maximum allowed. Id. Movant's Motion
further clarifies that he viewed the sentence as double
counting and an improper use of the guideline range. See
Movant's Mot. Under 28 U.S.C. § 2255 to Vacate, Set
Aside or Correct Sentence by a Pers. in Fed. Custody,
ECF No. 237, at 20-24. The PF&R fully explains that
adding a two-level increase under U.S. Sentencing Guideline
§ 2D1.1(b)(1) while also convicting a defendant for
being a felon in possession of a firearm under 18 U.S.C.
§ 922(g) is permissible, and the Court will not repeat
the analysis here. See PF&R, ECF No. 274, at
28-30. The Court agrees with the legal analysis that both
enhancements are proper and ADOPTS and INCORPORATES the
PF&R herein. Movant's Motion also addresses his
confusion as to how his offense level could total 26 when the
gun offense would only result, in what Movant calculates, as
a level 12. See Movant's Mot. Under 28 U.S.C.
§ 2255 to Vacate, Set Aside or Correct Sentence by a
Pers. in Fed. Custody, ECF No. 237, at 20-24; see
also Tr. of Sentencing, ECF No. 211, at 17:14-18. Under
the grouping rule in the U.S. Sentencing Guidelines,
“counts involving substantially the same harm shall be
grouped together into a single group.” U.S. Sentencing
Guidelines Manual § 3D1.2 (U.S. Sentencing Comm'n
2011). Because Movant was convicted of being a felon in
possession of a firearm in connection with the drug
convictions, the Court groups the counts together and the
higher base level applies at sentencing. Id. at
§ 3D.1.3. Accordingly, the Court properly applied the
base level of 26 when sentencing Movant, and his objections
Movant objects to the finding that the wiretap authorizations
were not in violation of federal law. See Obj., ECF
No. 287, at 4. Movant argues that the wiretap authorizations
involved state authorities before a federal investigation
started and, thus, must follow state law pursuant to 18
U.S.C. § 2511(2)(c). Id. However, as the
Magistrate Judge explained, § 2511(2)(c) does not
require compliance with state law. The section, in its
entirety, states, “[i]t shall not be unlawful under
this chapter for a person acting under color of law to
intercept a wire, oral, or electronic communication, where
such person is a party to the communication or one of the
parties to the communication has given prior consent to such
interception.” 18 U.S.C. § 2511(2)(c). The
language does not contain any requirement to follow state
law. See also United States v. Blevins, 315 F.
App'x 478, 480 (4th Cir. 2009) (“Moreover, federal
statutory and constitutional law permits officials to place
an electronic surveillance device on a consenting informant
for the purpose of recording communications with a
third-party suspect, even in the absence of a
warrant.”). Accordingly, Movant's objections are
Movant objects to his absence at the June 13, 2011
“plea hearing”, asserting that Weis again
ineffectively protected Movant's constitutional rights.
See Obj., ECF No. 287, at 4. The Court has already
addressed that Weis did not provide ineffective assistance.
Moreover, Movant did not object to the Magistrate Judge's
legal conclusion that Movant failed to raise this issue on
direct appeal. See PF&R, ECF No. 274, at 36-38.
The Court has reviewed the Magistrate Judge's analysis
and agrees that Movant cannot demonstrate cause and actual
prejudice or a miscarriage of justice to maintain his
argument for habeas when he failed to present the issue on
direct appeal. Accordingly, the Court OVERRULES Movant's
court additionally has considered whether to grant a
certificate of appealability. See 28 U.S.C. §
2253(c). A certificate will not be granted unless there is
“a substantial showing of the denial of a
constitutional right.” Id. at §
2253(c)(2). The standard is satisfied only upon a showing
that reasonable jurists would find that any assessment of the
constitutional claims by this Court is debatable or wrong and
that any dispositive procedural ruling is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).
The Court concludes that the governing standard is not
satisfied in this instance. Accordingly, the Court DENIES a
certificate of appealability.
Movant also filed an objection to the Magistrate Judge's
Decision to Deny Movant's Motion (ECF No. 261) for
Release on Bail. See Obj., ECF No. 284. Movant's
Motion requested his release on bond while the motion for
habeas relief remained pending. See Mot. for Release on
Bail, ECF No. ...