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Gardner v. United States

United States District Court, E.D. North Carolina, Western Division

February 2, 2017




         This matter is before the court on petitioner's motion to vacate, set aside, or correct sentence, made pursuant to 28 U.S.C. § 2255 (DE 106), and the government's motion to dismiss, made pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE 113). Also before the court are petitioner's motions to amend, to supplement, to expedite, to alter judgment, and for status update. (DE 111, 118, 130, 131, 132, 133, and 134-1). Pursuant to 28 U.S.C. § 636(b)(1)(B), United States Magistrate Judge James E. Gates, entered a memorandum and recommendation (“M&R”) (DE 138), wherein it is recommended that the court deny petitioner's motions and grant respondent's motion. Petitioner filed objections to the M&R, as corrected. In this posture, the issues raised are ripe for ruling. For the reasons stated herein, the court adopts the recommendation of the M&R, denies petitioner's motions, and grants respondent's motion.


         Indictment filed August 3, 2011, charged petitioner with possession of two firearms by a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924. Petitioner filed a motion to suppress on December 14, 2011, and the magistrate judge conducted an evidentiary hearing concluding February 1, 2011. The magistrate judge entered an M&R on August 9, 2012, recommending that the motion to suppress be denied upon findings of fact set forth in the M&R. Upon defendant's objections, this court adopted the findings of fact in the M&R and granted in part and denied in part the motion to suppress, by orders entered November 30, 2012 and January 30, 2013.

         On March 13, 2013, petitioner pleaded guilty to the charge set forth in the indictment, pursuant to a written plea agreement. 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 applicable 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.

(DE 85 at 1). In the plea agreement, petitioner also reserved his right to appeal the district court's ruling on his motion to suppress. On June 20, 2013, petitioner was sentenced to a term of imprisonment of 105 months. Petitioner appealed the court's suppression ruling, and the court of appeals affirmed.

         Petitioner filed the instant motion to vacate on September 15, 2014, asserting ineffective assistance of counsel on appeal (grounds 1 and 4); ineffective assistance of counsel regarding suppression hearing and plea (grounds 3, 5, 7); and ineffective assistance of counsel at sentencing (grounds 2 and 6). In its motion to dismiss, the government argues that petitioner's claims are without merit and, in part, because the plea waiver bars the claim and petitioner raised arguments on appeal.


         A. Standard of Review

         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 & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful review of the record, “the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

         A petitioner seeking relief pursuant to 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.” § 2255(a). “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” § 2255(b).

         B. Analysis

         In petitioner's objections, petitioner reiterates arguments asserted in support of his claims, which arguments the M&R cogently and thoroughly addressed. Upon de novo review of the claims and the record in this case, including review of documents attached to the objections, the court adopts and incorporates herein as its own the M&R's discussion of the claims, finding that the M&R correctly determined that petitioner's claims lack merit. In ...

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