United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE.
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.
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.
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
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.
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.
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.
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
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
Objection 1: Omissions from Factual and Procedural
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.
Objection 2: Magistrate Judge's Purported “Role ...