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Richardson v. United States

United States District Court, S.D. West Virginia, Charleston Division

November 20, 2019

JOSHUA GREGORY RICHARDSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          IRENE C. BERGER UNITED STATES DISTRICT JUDGE

         On December 11, 2018, the Petitioner filed a motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence (Document 49). By Standing Order (Document 50) entered on December 12, 2018, the matter was referred to the Honorable Omar J. Aboulhosn, United States Magistrate Judge, for submission to this Court of proposed findings of fact and recommendation for disposition, pursuant to 28 U.S.C. § 636.

         On July 8, 2019, the Magistrate Judge submitted a Proposed Findings and Recommendation (PF&R) (Document 58), wherein it is recommended that this Court deny the Petitioner's § 2555 motion and remove this action from the Court's docket. The Movant's Objection to the Proposed Findings and Recommendations Concerning Petition for Habeas Corpus (28 U.S.C. §2255) (Document 59) was timely filed on July 22, 2019. For the reasons stated herein, the Court finds that the PF&R should be adopted and the Petitioner's § 2255 motion must be denied.

         FACTS

         Magistrate Judge Aboulhosn's PF&R sets forth in detail the procedural and factual history surrounding the Petitioner's motion. The Court now incorporates by reference those facts and procedural history, but in order to provide context, the Court provides the following summary.

         On February 22, 2018, the Petitioner, Joshua Gregory Richardson, entered a guilty plea to conspiracy to distribute a quantity of methamphetamine in violation of 21 U.S.C. § 846. On July 19, 2018, he was sentenced to a 71-month term of incarceration, the top of his applicable Sentencing Guideline range. He did not file a direct appeal. He now alleges that his counsel was ineffective, rendering his guilty plea involuntary.

         According to Mr. Richardson's Presentence Investigation Report (PSR), officers using a Confidential Source (CS) to make a controlled drug purchase from another individual, identified as D.B., observed Mr. Richardson enter D.B.'s residence and exit a few moments later. They followed his vehicle and conducted a traffic stop for failure to maintain control. A K-9 indicated positively for controlled substances in the vehicle, and officers searched the vehicle and Mr. Richardson. They seized $9, 883, including $900 of pre-recorded money used during the controlled drug transaction. He pled guilty in municipal court to a lane violation but contends that dash cam video demonstrates that he did not violate any traffic laws.

         Officers searched D.B.'s residence, and found quantities of methamphetamine and pills, as well as guns. D.B. stated that she had purchased a total of eight to ten ounces of methamphetamine from Mr. Richardson in several separate transactions. At first, she paid for the drugs in full when she purchased them, but Mr. Richardson later began fronting her drugs, and she owed him about $4, 000 at the time of the search of her home. She admitted that she gave Mr. Richardson $3, 000 on December 20, 2016, including the money she received during the controlled purchase.

         Mr. Richardson signed a plea agreement with a stipulation of facts admitting that he supplied methamphetamine to D.B. and admitting responsibility for 400 to 700 kilograms of marijuana equivalency. The pre-sentence investigation found him responsible for 28.37 grams of “ice” and 56.7 grams of methamphetamine, with a combined total marijuana equivalency of 680.10 kilograms.

         The plea agreement also included waivers of appeal and of collateral attack, except as to allegations of ineffective assistance of counsel. During Mr. Richardson's plea hearing, the Court advised him as to those waivers. He also indicated that he understood that he would not be able to call or cross-examine witnesses or move to suppress evidence as a result of his guilty plea. At the time of his plea hearing, he stated that he was satisfied with his counsel and had freely chosen to plead guilty following consultation with his attorney.

         Mr. Richardson now contends that his counsel was ineffective because he failed to file a motion to suppress the traffic stop and D.B.'s statement. He argues that D.B. gave inconsistent statements and that her statements constitute hearsay. Absent that evidence, he argues that the case against him would have been dismissed.

         STANDARD OF REVIEW

         This Court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). 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, this Court need not conduct a de novo review when a party “makes general and conclusory objections that do not direct the Court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). When reviewing portions of the PF&R de novo, the Court ...


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