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Musgrove v. United States

United States District Court, N.D. West Virginia, Elkins

July 20, 2017

UNITED STATES OF AMERICA, Respondent. Civil Action No. 2:15-CV-36



         On this day, the above-styled matter came before the Court for consideration of the Report and Recommendation (“R&R”) of United States Magistrate Judge Robert W. Trumble. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Trumble for submission of a proposed R&R. Magistrate Judge Trumble filed his R&R on March 13, 2017 [Crim. Doc. 551; Civ. Doc. 11]. In that filing, the magistrate judge recommended that this Court deny petitioner's 28 U.S.C. § 2255 motion (“§ 2255 Motion") [Crim. Doc. 456; Civ. Doc. 1[1], and dismiss this action from the docket.

         Pursuant 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 timely 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 receipt, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. The petitioner timely filed his objections [Doc. 554] on April 27, 2017. Accordingly, this Court will conduct a de novo review of the portions of the magistrate judge's R&R to which the petitioner objects. The remainder of the R&R will be reviewed for clear error.

         I. Background

         On June 21, 2011, petitioner was charged with three counts of a nineteen count Superseding Indictment: (1) Count One: Conspiracy to possess with intent to distribute cocaine hydrochloride and methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A) and 841(b)(1)(B); (2) Count Three: Aiding and abetting the possession with intent to distribute greater than 500 grams cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B); and (3) Count Fourteen: Aiding and abetting distribution of greater than 5 grams methamphetamine (actual), in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) and 18 U.S.C. § 2 [Doc. 82 at 1-2, 4, 15]. On February 21, 2012, a two-day jury trial was held before this Court [Doc. 249], after which the jury returned a verdict of guilty against petitioner on Counts One and Three and of not guilty on Count Fourteen [Doc. 278].

         Petitioner then filed a pro se Motion to Dismiss his trial counsel, Barry Beck, Esq. (“attorney Beck”), due to ineffective assistance and to have new counsel appointed to his case on May 25, 2012 [Doc. 317]. Shortly thereafter, on June 7, 2012, attorney Beck was terminated as petitioner's counsel and Scott Curnutte, Esq. (“attorney Curnutte”), was appointed as new counsel [Docs. 329 & 330]. Then, on July 13, 2012, petitioner filed another pro se Motion [Doc. 338] requesting that attorney Curnutte be dismissed from his case, which this Court denied by Order on July 20, 2012 [Doc. 341]. After an initial sentencing hearing was continued while petitioner to allow petitioner time to prepare pro se Objections to the PSR, this Court held a sentencing hearing on November 26, 2012 with attorney Curnutte acting as petitioner's counsel [Doc. 370]. After the hearing, Judge Bailey sentenced petitioner to “360 months [of imprisonment] on each of Counts [One] and [Three], to be served concurrently” [Doc. 372 at 2]. Additionally, Judge Bailey sentenced Petitioner to four years of supervised release “on each of Counts [One] and [Three], all such terms to run concurrently” [Id. at 3].

         On November 28, 2012, petitioner filed a Notice of Appeal wherein he again requested new counsel [Doc. 374]. On December 13, 2012, the Fourth Circuit appointed Dorwin J. Wolfe, Esq. (“attorney Wolfe”), to represent petitioner during his appeal [Doc. 383]. On appeal, petitioner contended that the district court had erred by: (1) “denying the last of several motions for a [trial] continuance;” (2) failing to compel the attendance of three defense trial witnesses; (3) declining to instruct the jury regarding the mechanics of a substantial assistance motion; (4) refusing his pro se request to call prosecution witness Shawn Rohrbaugh at sentencing, and (5) overruling his objection to a two-point obstruction of justice sentencing enhancement. United States v. Musgrove, 545 F.App'x. 199, 200-02 (4th Cir. 2013). On October 30, 2013, the United States Court of Appeals for the Fourth Circuit denied petitioner's appeal in a per curiam opinion and affirmed petitioner's conviction and sentence. Id. at 200, 202-03. Subsequently, petitioner filed a petition for certiorari to the United States Supreme Court, which was denied on June 9, 2014. Musgrove v. United States, 134 S.Ct. 2739 (2014). The instant § 2255 Motion followed.

         II. Legal Standards

         a. Ineffective Assistance of Counsel:

         “The essence of an ineffective-assistance claim is that counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect.” Hope v. Cartledge, 857 F.3d 518, 523 (4th Cir. 2017) (citing Kimmelman v. Morrison, 477 U.S. 365, 374 (1986)). The United States Supreme Court has set forth a two-pronged test for courts to use when determining whether a convicted defendant's claim of ineffective assistance of counsel warrants reversal of the conviction. Strickland v. Washington, 466 U.S. 668, 687 (1984). “First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. Second, “the defendant must show that the deficient performance prejudiced the defense.” Id. To satisfy the second or “prejudice” prong, the defendant must show that “counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. Consequently, if counsel's errors have no effect on the judgment, the conviction should not be reversed. See id. at 691. Absent certain situations where the reliability of a trial becomes so questionable that the defendant need not show that he was actually prejudiced and prejudice is instead presumed, a defendant must show that his counsel's performance was deficient and prejudicial to prevail on a claim of ineffective assistance of counsel in accordance with Strickland. United States v. Ragin, 820 F.3d 609, 612 (4th Cir. 2016) (citing United States v. Cronic, 466 U.S. 648 (1984)).

         III. Analysis

         While petitioner raises five grounds for relief in his Petition [Doc. 515], he only raises objections to two of those points, which, in turn, this Court shall review de novo [Doc. 554].

         A. Trial Counsel's Purported Failure ...

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