United States District Court, N.D. West Virginia, Elkins
ORDER ADOPTING REPORT AND RECOMMENDATION
PRESTON BAILEY UNITED STATES DISTRICT JUDGE.
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, and dismiss this action from the docket.
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).
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.
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
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].
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
Ineffective Assistance of Counsel:
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)).
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
Trial Counsel's Purported Failure ...