United States District Court, E.D. North Carolina, Southern Division
LOUISE W. FLANAGAN, Chief District Judge.
This matter comes before the court on petitioner's motion to vacate his sentence, made pursuant to 28 U.S.C. § 2255 (DE 38), and the government's motion for summary judgment on the same (DE 41). Pursuant to 28 U.S.C. § 636(b)(1) United States Magistrate Judge William A. Webb entered memorandum and recommendation ("M&R") (DE 60) wherein he recommends that the court grant the government's motion for summary judgment, and deny petitioner's motion. Petitioner timely filed objections to the M&R and issues raised are ripe for ruling. For the reasons that follow, the court ADOPTS in large part the recommendation of the M&R, GRANTS IN PART the government's motion for summary judgment and DENIES petitioner's motion to vacate.
The court references the detailed background in the M&R, and briefly summarizes further as follows. On February 16, 2012, petitioner pleaded guilty, pursuant to a written plea agreement, to one count of transportation of child pornography, in violation of 18 U.S.C. § 2252(a). In that plea agreement, petitioner agreed to:
waive knowingly and expressly all rights, conferred by 18 U.S.C. § 3742, to appeal whatever sentence is imposed, including any issues that relate to the establishment of the advisory Guideline range, reserving only the right to appeal from a sentence in excess of the advisory Guideline range that is established at sentencing, and further to waive all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to 28 U.S.C. § 2255, excepting an appeal or motion based upon grounds of ineffective assistance of counsel or prosecutorial misconduct not known to the Defendant at the time of the Defendant's guilty plea.
Plea Agreement ¶ 2.c. (DE 28). As outlined in the M&R, a Rule 11 hearing was held at the time of petitioner's guilty plea. Petitioner was thoroughly examined, and testified that he understood the charges against him, his rights, and the plea agreement he had signed. Tr. Arraignment Hr'g 16-26. Petitioner also stated that he was satisfied with the services of his attorney. Id. at 16. The court accepted petitioner's guilty plea. Id. at 29. On July 10, 2012, the court sentenced petitioner to 180 months incarceration.
On January 8, 2014, petitioner filed the instant motion to vacate, which was referred for M&R. Petitioner asserts that (1) he received ineffective assistance of counsel where counsel allegedly informed him he would receive no more than a five year sentence, and where counsel failed to file an appeal despite being instructed to do so; (2) he was denied the right to cross-examine witnesses against him; (3) was subjected to double jeopardy; and (4) was not given a suppression hearing. The government responded on February 19, 2014, moving to dismiss petitioner's motion. The court converted the government's motion to dismiss into a motion for summary judgment, and allowed the parties time to file supplemental briefing. Where no such briefing was filed by the government, the court, by order entered July 22, 2013, directed the government to submit an affidavit from petitioner's trial counsel Todd A. Smith ("Smith"), and the government did so. In this affidavit, Smith asserts that he and petitioner discussed petitioner's right to appeal on several occasions and denied that petitioner instructed him to file an appeal. Smith Aff. ¶ 10.
Also on July 22, 2013, finding there were certain disputed material facts requiring a credibility determination to be made with respect to petitioner's claim for ineffective assistance of counsel, the court gave the parties notice that it would hold an evidentiary hearing on petitioner's motion to vacate. In that notice, the court ordered the Office of the Federal Public Defendant to appoint counsel to represent petitioner at evidentiary hearing. Such evidentiary hearing was held August 27, 2013. The instant M&R was entered on September 23, 2013. Petitioner timely filed objections thereto, which the court takes up at this time.
A. Standard of Review
A petitioner who seeks to vacate his sentence under 28 U.S.C. § 2255 must show that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). In these proceedings, the burden of proof by a preponderance of the evidence rests on the petitioner. Miller v. United States , 261 F.2d 546, 547 (4th Cir.1958).
Rule 12 of the Rules Governing Section 2255 Proceedings ("Habeas Rules") states that, "[t]he Federal Rules of Civil Procedure... to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules." Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby , 477 U.S. 242, 247-48 (1986) (holding that a factual dispute is "material" only if it might affect the outcome of the suit and "genuine" only if there is sufficient evidence for a reasonable jury to find for the non-moving party). The party seeking summary judgment bears the initial burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the nonmoving party then must affirmatively demonstrate with specific evidence that there exists a genuine issue of material fact requiring trial. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586-87 (1986).
Summary judgment is not a vehicle for the court to weigh the evidence and determine the truth of the matter, but to determine whether a genuine issue exists for trial. Anderson , 477 U.S. at 249. In making this determination, the court must view the inferences drawn from the underlying facts in the light most favorable to the nonmoving party. United States v. Diebold, Inc. , 369 U.S. 654, 655 (1962). Only disputes between the parties over facts that might affect the outcome of the case properly preclude the entry of summary judgment. Anderson , 477 U.S. at 247-48. Accordingly, the court must examine the materiality and the genuineness of the alleged fact issues in ruling on this motion. Id. at 248-49.
The district court reviews de novo those portions of a magistrate judge's M&R to which specific objections are filed. 28 U.S.C. § 636(b). The court does not perform a de novo review where a party makes only "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). Absent a specific and timely filed objection, the court reviews only for "clear error, " and need not give any explanation for adopting the M&R. Diamond v. Colonial Life & Acc. Ins. Co. , 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis , 718 F.2d 198, 200 (4th Cir.1983). Upon ...