United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE
before the Court are Movant Raymond Hersman's Objections
to the Proposed Findings and Recommendation of the Honorable
Omar J. Aboulhosn, Magistrate Judge, (ECF No. 176) on
Movant's request for post-conviction relief pursuant to
28 U.S.C. § 2255. ECF No. 152. As the factual and
procedural history of this case is set out fully by the
Magistrate Judge, the Court does not repeat them here.
Nevertheless, this Court does conduct “a de novo
determination of those portions of the . . . [Magistrate
Judge's] proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b), in part;
see e.g., Crump v. United States, No.
3:16-CV-05821, 2018 WL 4037620, at *1 (S.D. W.Va. Aug. 23,
2018) (“The Court conducts a de novo review of those
portions of the Magistrate Judge's report to which a
party objects.”). Upon de novo review, the Court
DENIES Movant's objections for the
Objections, Movant first argues that the Magistrate Judge
erred in determining that his proposed amendments to his
Section 2255 motion were untimely as they were filed outside
the one-year statute of limitations found in Section 2255(f)
and do not relate back to his original Section 2255 motion.
As part of his proposed amendments, Movant argues that the
District Court failed to ask him whether he affirmed, denied,
or otherwise challenged a prior conviction contained in an
information filed against him pursuant to 21 U.S.C. §
851. See United States v. Hersman, 2:13-0002, ECF
No. 79 (Information to establish a prior conviction). The
Magistrate Judge determined this argument was completely new
and was not raised either on direct appeal or in his original
Section 2255 motion. PF&R, at 11. Movant objects
to this finding, stating he previously asserted that his
“mandatory minimum sentence was determined by facts not
charged and/or decided by the jury.” Verified Obj.
to PF&R, at 2. However, Movant does not cite
anywhere in the record where he specifically raised a failure
of the District Court to question him about the Section 851
enhancement. Moreover, Movant does not argue the prior
conviction contained in the Section 851 was inaccurate. He
merely complains that he was not asked about it. Although
this Court must liberally construe his pro se pleadings,
even a liberal construction of the pleadings is insufficient
to find his claim relates back. Movant's assertion he
previously argued his “mandatory minimum sentence was
determined by facts not charged and/or decided by a
jury” is a much different argument than challenging the
manner in which the District Court questioned him about the
Section 851 enhancement. As Movant cites no other grounds for
his objection to relate back, the Court
DENIES this objection and
FINDS the Magistrate Judge did not err in
finding Movant was making a new argument with respect to his
Section 851 enhancement that does not relate back to his
Movant argues the Magistrate Judge erred in not recommending
his motion be granted based upon the Supreme Court's
holding in Alleyne v. United States, 570 U.S. 99
(2013). In Alleyne, the Supreme Court held that,
“[f]acts that increase the mandatory minimum sentence
are therefore elements and must be submitted to the jury and
found beyond a reasonable doubt.” 570 U.S. at 108.
However, this holding does not prevent a Court from
considering an enhancement for a prior conviction. United
States v. Washington, 574 Fed.Appx. 262, 264 (4th Cir.
2014) (“Alleyne . . . does not require prior
convictions to be alleged in an indictment and submitted to
the jury.”). In this case, the Magistrate Judge
correctly found Movant's 20-year mandatory minimum
sentence was based upon his prior conviction of controlled
substance offenses as set forth in the Section 851
enhancement filed against him. Thus, Alleyne does
not apply, and Movant is not entitled to relief on this
basis. Likewise, as it does not apply, the Court
FINDS his appellate counsel was not
ineffective for failing to raise the issue on direct appeal
and, therefore, the Court DENIES this
third argument is that his prior counsel was ineffective in
failing to raise speedy trial violations. However, as the
Magistrate Judge detailed in the Proposed Findings and
Recommendation, there was no violation of Movant's speedy
trial rights as the time period between February 12, 2013 and
May 10, 2013 was excludable because of pending motions.
PF&R, at 23. Therefore, the Court agrees with
the Magistrate Judge that counsel was not ineffective for
failing to raise a violation of Movant's speedy trial
rights because such a motion would have been without merit.
Accordingly, Movant's objection IS
fourth objection is that the Magistrate Judge erred in not
finding his trial counsel, David White, was ineffective
because he did not contest the District Court's decision
to grant the United States' Motion to Disqualify
Movant's prior counsel, William Forbes. Movant argues he
should have been able to keep Mr. Forbes as his attorney.
However, as indicated by the Magistrate Judge, the record
establishes that Mr. Forbes had a disqualifying conflict of
interest as he had represented three potential witnesses. As
explained by the Magistrate Judge, the fact Movant and the
potential witnesses signed waivers is of no consequence under
Wheat v. United States, 486 U.S. 153 (1988),
“‘where [a] potential for conflict exists which
may or may not burgeon into an actual conflict as the trial
progresses.'” PF&R, at 25 (quoting
Wheat, 486 U.S. at 163). Not only does the record
support serious potential and/or actual conflicts as a result
of the witnesses, Mr. Forbes also may have possessed
first-hand information about the case and was a potential
witness himself, creating an independent reason for
disqualification. Moreover, Movant fails to explain how he
was prejudiced by Mr. Whites' decision not to challenge
prior counsel's disqualification. Therefore, for these
reasons, the Court agrees with the Magistrate Judge, and
DENIES Movant's objection.
fifth objection is that the Magistrate Judge erred in not
finding his trial counsel, Mr. White, was ineffective in
agreeing with the United States that the investigating
officers should be treated as federal officers, with
authority to travel to another county to obtain a search
warrant. Likewise, Movant insists the Magistrate Judge erred
in concluding Mr. White was not ineffective because he did
not request a continuance when he filed a Renewed Motion to
Suppress on the first day of trial.
respect to Movant's first argument, the Magistrate Judge
correctly found that the issue regarding the investigating
officers was raised and decided on direct appeal.
PF&R, at 30 (citing United States v.
Hersman, No. 14-4015, 2014 WL 2532015 (4th Cir. 2014)
(Opening Brief of Appellant Raymond Hersman setting forth
Movant's arguments on appeal)). As stated by the Fourth
Circuit in Boekenhaupt v. United States, 537 F.2d
1182 (4th Cir. 1976) (per curiam), a defendant “will
not be allowed to recast, under the guise of a collateral
attack, questions fully considered [on appeal].” 537
F.2d at 1183 (citation omitted). On appeal, the Fourth
Circuit rejected Movant's claim that the evidence should
have been suppressed because of a defective search warrant,
holding that, even if the warrant was constitutionally
defective, “the district court did not err by finding
the good-faith exception to the exclusionary rule to be
applicable.” United States v. Hersman, 583
Fed.Appx. 156, 156-57 (4th Cir. 2014) (per curiam).
Therefore, Movant is procedurally barred from repeating the
argument on collateral review.
review, the Court also agrees with the Magistrate Judge that
Mr. White did not act unreasonably by failing to request a
continuance when he filed the Renewed Motion to Suppress.
See PF&R, at 31. When the motion was filed, the
District Court continued the jury trial until the next day in
order to give the parties time to present their arguments.
Additionally, for the reasons explained by the Magistrate
Judge, as the Fourth Circuit upheld the District Court's
decision to deny the Motion to Suppress, Movant cannot show
he was prejudiced or, but for the alleged error, the result
would have been any different. See Id. at 32.
Accordingly, the Court DENIES these
objections by Movant.
sixth objection is that Mr. White was ineffective by failing
to introduce into evidence the tracking data from a GPS
device. The GPS device was placed on a 2001 Mitsubishi
Eclipse owned by Movant's fiancé, and officers
testified that they attempted to stop the Eclipse in the
Gauley Bridge area of West Virginia. Id. at 33; Tr.
at 231, United States v. Hersman, 2:13-0002, ECF No.
109. Although officers ultimately aborted their attempt to
stop the vehicle because a high-speed chase had ensued, drugs
were found near the roadway where the Eclipse had been
located. Id. Movant presented testimony from himself
and three witnesses that he was not driving the Eclipse in
the Gauley Bridge area on the night of the event.
Id. Movant's attorney also presented evidence
that there were only partial fingerprints found on the drugs,
and those fingerprints were not identifiable. Id. at
34; Tr. at 34-35, ECF No. 109. Additionally, despite
Lieutenant Chad Napier's testimony he saw Movant was the
driver of the Eclipse when the car was stopped, Movant's
attorney elicited testimony that the windows of the Eclipse
were tinted, it was approximately 4:46 a.m., and the car only
was stopped for five seconds. Id. at 34; Tr. at 84,
115-16, ECF No. 109.
argues the GPS tracking data should have been admitted into
evidence because the jury requested it during deliberations,
indicating the jurors were struggling with a decision.
However, Movant's argument as to what the jurors were
thinking is pure speculation. Moreover, as pointed out by the
Magistrate Judge, Movant fails to state how he was prejudiced
by the GPS tracking data not being admitted. Such data only
indicates where the Eclipse was located, not who was driving
the Eclipse. Although Movant asserts in his objections that
the GPS data likely was altered, this allegation is
completely unsubstantiated. Therefore, for these reasons and
for the reasons more fully explained by the Magistrate Judge,
the Court rejects Movant's argument that his trial
attorney was ineffective for not introducing the GPS tracking
data and DENIES the objection.
last argument is that the United States acted maliciously in
filing a superceding indictment against him. The Magistrate
Judge thoroughly examined this issue in the PF&R, and
concluded “Movant fails to present any evidence [ ]
that the Government acted with genuine animus, and that but
for that animus, Movant would not have been prosecuted.
Movant further fails to allege any facts that would support a
finding of ‘reasonable likelihood of
vindictiveness.'” PF&R, at 40. For
these reasons, and the other reasons stated by the Magistrate
Judge, the Court DENIES this objection.
for the foregoing reasons, the Court DENIES
Movant's Verified Objections to Proposed Findings and
Recommendation (ECF No. 176), ADOPTS AND INCORPORATES
HEREIN the Proposed Findings and Recommendation of
the Magistrate Judge (ECF No. 173), DENIES
Movant's Motion for Leave to File Amendment to Petition
for Post-Conviction Relief pursuant to 28 U.S.C. § 2255
(ECF No. 167), GRANTS Movant's Motion
for Leave to File Second Verified Amendment and Supplemental
Legal Memorandum in Support of Petition for Post-Conviction
Relief pursuant to 28 U.S.C. § 2255 (ECF No. 171), and
DENIES Movant's Motion under 28 U.S.C.
§ 2255 to Vacate, Set Aside or Correct Sentence by a
Person in Federal Custody. ECF Nos. 152.
Court DIRECTS the Clerk to send a copy of
this Order to counsel and the defendant, the Unites States
Attorney's Office, the United States Probation ...