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Bush v. United States

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

January 10, 2020




         Pending before the Court are Movant Mark Bush's Objections to the Proposed Findings and Recommendation (“PF&R”) issued on August 30, 2019 by Magistrate Judge Cheryl A. Eifert. Objections, ECF No. 383; PF&R, ECF No. 368. For the reasons set forth below, the Court DENIES Movant's Objections and ADOPTS AND INCORPORATES HEREIN the PF&R. Consistent with these decisions, the Court DISMISSES WITH PREJUDICE Movant's Motion to Vacate, Set Aside, or Correct Sentence and his Supplemental Motion to Vacate, Set Aside, or Correct Sentence, and GRANTS the Government's Motion to Dismiss. Mot. to Vacate, ECF No. 188; Supplemental Mot., ECF No. 283; Mot. to Dismiss, ECF No. 334. Finally, the Court ORDERS this case stricken from its docket.


         While the factual and procedural history of this case is discussed exhaustively in the PF&R, the Court will undertake a brief review of the essential elements of its background before proceeding further. On December 21, 2016, a grand jury returned an eleven-count indictment against Movant and seven other defendants. In Count One, the grand jury charged that Movant had engaged in a conspiracy to distribute a quantity of heroin and oxymorphone in violation of 21 U.S.C. § 846 and § 841(a)(1). Indictment, ECF No. 1, at 1-2. The grand jury also charged that Movant's conspiracy involved 100 grams or more of heroin, that he had knowingly and intentionally distributed heroin on two occasions, and that he had possessed with the intent to distribute heroin on another occasion. Id. at 4, 9, 12. On May 8, 2017, Movant entered an informed guilty plea as to Count One of the indictment and signed a plea agreement to that effect. See ECF Nos. 119, 121, 122.

         This Court sentenced Movant on August 14, 2017. See Sentencing Hr'g Tr., ECF No. 207, at 1. At his sentencing, Movant disputed the 26, 000 kilograms of marijuana equivalency that were attributed to him in his Presentence Report (“PSR”). The Court agreed that the PSR did not establish that Movant was responsible for 26, 000 kilograms, but concluded that it did establish his responsibility for at least 3, 000 kilograms. Id. at 140. The Court also concluded that Movant was a leader in the drug distribution conspiracy, earning him a four-point enhancement under the United States Sentencing Guidelines, as well as another two-point enhancement for possession of a dangerous weapon. Id. at 143. After acceptance of responsibility, Movant's guideline sentencing range was 210 to 262 months imprisonment. The Court imposed a low-end sentence of 210 months imprisonment, four years of supervised release, and a $100 special assessment. Id. at 143-151.

         The next day, Movant mailed the Court a letter stating that he had been unsatisfied with his representation and that he wished to enter an appeal. On August 24, 2017, Movant filed a notice of appeal and the instant Motion to Vacate, Set Aside, or Correct Sentence currently pending before the Court. See Mot. to Vacate, at 1. The thrust of Movant's motion is that his trial counsel “rushed” him into taking a plea deal that he would otherwise have rejected had he understood its possible sentencing implications. Id. at 3.

         On April 5, 2018, the Fourth Circuit Court of Appeals denied Movant's direct appeal and concluded that he had “knowingly and voluntary waived his right to appeal” and “that the issues raised on appeal fall squarely within the scope of the waiver.” Order, ECF No. 248. On October 12, 2018, Movant filed the instant Supplemental Motion to Vacate, Set Aside, or Correct Sentence, along with several categories of supporting documents. See Supplemental Mot., at 1; see also ECF Nos. 284-86. Along with a multitude of other alleged shortcomings on the part of his trial counsel, Movant claimed that he attempted to fire his attorney by mailing the Court a letter on August 2, 2017, but that the Court ignored it or never received it. Decl. in Support, ECF No. 285, at 2. Movant's trial counsel strongly disputes this retelling of events, asserting “that the Movant had a full understanding of the potential range of sentences which could be imposed upon him and made an informed decision to enter into the plea bargain.” Davenport Aff., ECF No. 306, at 2.

         On April 30, 2019, the United States filed a Response to Movant's § 2255 motions that disputed his allegations and argued that his ineffective assistance of counsel claim was “based on his dissatisfaction with the ultimate sentence.” Resp. in Opp'n, ECF No. 334, at 14. Movant filed a Reply on July 29, 2019, reiterating many of his earlier arguments. Reply, ECF No. 367. On August 30, 2019, Magistrate Judge Eifert issued her PF&R recommending that the Court deny both of Movant's motions. PF&R, at 1. On November 6, 2019, Movant timely filed a set of twenty numbered objections to the PF&R. Objections, at 1-10. The issues addressed in Movant's Objections are ripe for the review this Court now undertakes.


         Where a party is proceeding pro se, the Court will liberally construe his pleadings and objections. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). In reviewing objections to a PF&R, the Court must conduct a de novo review of those portions of the Magistrate Judge's findings “to which objection is made.” 28 U.S.C. § 636(b)(1)(C). On the other hand, the Court is not obligated to conduct a review of factual and legal conclusions to which a party does not object. Thomas v. Arn, 474 U.S. 140, 150 (1985). Nor is the Court tasked with conducting de novo review of “general and conclusory” objections; instead, objections must raise specific errors in the PF&R. McPherson v. Astrue, 605 F.Supp.2d 744, 749 (S.D. W.Va. 2009) (citing Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982)) (reasoning that “vague objections to the magistrate judge's findings prevents the district court from focusing on disputed issues and thus renders the initial referral to the magistrate judge useless”). Finally, the Court possesses the wide discretion to “accept, reject, or modify, in whole or in part, the findings or recommendations” of the Magistrate Judge. 28 U.S.C. § 636(b)(1)(C). With this framework in mind, the Court turns to a consideration of Movant's pending objections.


         Movant presents twenty objections to Magistrate Judge Eifert's PF&R, though the last of these is a catch-all objection that rejects the PF&R “based on the foregoing reasons.” Objections, at 10. As this is not an objection to a specific alleged error in the PF&R-and indeed, is not really an objection at all-the Court will proceed to an analysis of Plaintiff's first nineteen objections.

         A. Objection 1: Omissions from Factual and Procedural History

         Movant's first objection is specifically related to the factual and procedural background included in the PF&R. Specifically, he argues that the PF&R omits a discussion of the “revising of PSR tactic employed to obtain guilty plea, ” apparently related to amendments he claims occurred between July 3, 2017 and July 28, 2017. Id. at 1-2. As a preliminary matter, even the most thorough PF&R or judicial opinion will not reference every fact from every stage of proceedings in the course of a factual summary; to hold otherwise would require courts to incorporate entire records into written opinions and orders. That reality aside, revisions to the PF&R in July 2017 could have no possible effect on the outcome of Movant's motion because he pleaded guilty to Count One of the indictment in May 2017-two months before any revisions allegedly occurred. The fact that Movant's guideline range might have been higher than what he or his attorney expected does not alter the knowing and voluntary nature of his guilty plea in May. See United States v. Washington, 233 Fed.Appx. 280, 282 (4th Cir. 2007) (reasoning that attorney's miscalculation of client's guideline range was not grounds to withdraw a guilty plea so long as defendant “was informed of the maximum sentence he faced for each count, [and] that the court could not calculate his sentence until the probation officer prepared the PSR”). As such, Movant's first objection must be denied.

         B. Objection 2: Magistrate Judge's Purported “Role ...

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