United States District Court, N.D. West Virginia, Martinsburg
ORDER ADOPTING REPORT AND RECOMMENDATION
M. GROH CHIEF UNITED STATES DISTRICT JUDGE
before the Court is 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
issued his R&R [ECF No. 182] on December 12, 2018. In his
R&R, Magistrate Judge Trumble recommends that the
Petitioner's Motion to Vacate under 28 U.S.C. § 2255
[ECF No. 137] be denied and dismissed with prejudice.
Standard of Review
to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of the magistrate judge's
findings where 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 to which no objection is made. Thomas v. Arn,
474 U.S. 140, 150 (1985). Failure to file timely objections
constitutes a waiver of de novo review and of a
Petitioner's 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).
“[w]hen a party does make objections, but these
objections are so general or conclusory that they fail to
direct the district court to any specific error by the
magistrate judge, de novo review is unnecessary.”
Green v. Rubenstein, 644 F.Supp.2d 723, 730 (S.D.
W.Va. 2009) (citing Orpiano v. Johnson, 687 F.2d 44,
47 (4th Cir. 1982)). “When only a general objection is
made to a portion of a magistrate judge's
report-recommendation, the Court subjects that portion of the
report-recommendation to only a clear error review.”
Williams v. New York State Div. of Parole, No.
9:10-CV-1533 (GTS/DEP), 2012 WL 2873569, at *2 (N.D.N.Y. July
12, 2012). Courts have also held that when a party's
objection lacks adequate specificity, the party waives that
objection. See Mario v. P & C Food Markets,
Inc., 313 F.3d 758, 766 (2d Cir. 2002) (finding that
even though a party filed objections to the magistrate
judge's R&R, they were not specific enough to
preserve the claim for review). Bare statements “devoid
of any reference to specific findings or recommendations . .
. and unsupported by legal authority, [are] not
sufficient.” Mario 313 F.3d at 766. Finally,
the Fourth Circuit has long held, “[a]bsent objection,
we do not believe that any explanation need be given for
adopting [an R&R].” Camby v. Davis, 718
F.2d 198, 200 (4th Cir. 1983) (finding that without an
objection, no explanation whatsoever is required of the
district court when adopting an R&R).
to Magistrate Judge Trumble's R&R were due within
fourteen plus three days of service. 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b). Service was accepted by the
pro se Petitioner on December 17, 2018. ECF No. 183.
The Petitioner filed his objections on December 26, 2018. ECF
No. 184. Accordingly, this Court will review the
Petitioner's objections to the R&R de novo.
The Court will review the remainder of the R&R for clear
Judge Trumble recommends that this action be dismissed with
prejudice because the Petitioner cannot show that: (1) his
conviction or sentence was imposed in violation of the laws
or Constitution of the United States; (2) the sentencing
court lacked jurisdiction; (3) the sentence exceeded the
maximum authorized by law; or (4) that the sentence was
otherwise subject to collateral attack. In his objections,
the Petitioner only challenges the fourth finding.
Specifically, the Petitioner argues that his sentence is
otherwise subject to collateral attack because his counsel,
Nicholas J. Compton, was constitutionally ineffective.
review of all the filings in this matter, the Court finds
that the Petitioner has not presented any new material facts
or arguments in his objections. Rather, the objections
reiterate the same arguments the Petitioner made in his
original filings, which were considered by the magistrate
judge when he issued the R&R. Specifically, these
arguments can be found in the Petitioner's motion to
vacate under 28 U.S.C. § 2255 [ECF No. 137], the
Petitioner's motion to amend his § 2255 as a matter
of course [ECF No. 149], and throughout the October 10, 2018
evidentiary hearing [ECF No. 177]. Therefore, the Court finds
that de novo review is not required because the
Petitioner has failed to make specific objections that
present new facts or arguments not already before the
magistrate judge. Nevertheless, the Court will review the
Petitioner's argument that his counsel was
constitutionally ineffective below.
Strickland v. Washington, 466 U.S. 668 (1984), the
United States Supreme Court established a two-factor test to
determine whether counsel was constitutionally ineffective.
First, the Petitioner must show that his counsel's
performance “fell below an objective standard of
reasonableness.” Id. at 688. “Judicial
scrutiny of counsel's performance must be highly
deferential, ” and the reviewing court must recognize
that “counsel is strongly presumed to have rendered
adequate assistance.” Id. at 689-90.
even if the court determines that counsel acted unreasonably,
the judgment of the criminal proceeding will not be set aside
unless counsel's performance was “prejudicial to
the defense.” Id. at 692. “It is not
enough for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding.”
Id. at 693. The Petitioner must show “that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. “A
reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id.
Petitioner argues that his counsel, Nicholas J. Compton, was
constitutionally ineffective because Mr. Compton: (1) failed
to file an appeal on his behalf; and (2) failed to make