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Wright v. United States

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

February 28, 2017

ERNEST JOSHON WRIGHT, Petitioner
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         This matter is before the court on petitioner's motion to vacate, set aside, or correct h is sentence under 28 U.S.C. § 2255 (DE 68), and the government's motion to dismiss, (DE 85), to which petitioner filed a response in opposition. Pursuant to 28 U.S.C. § 636(b)(1)(B), United States Magistrate Judge Kimberly A. Swank, entered memorandum and recommendation (“M&R”) (DE 96), wherein it is recommended that the court deny petitioner's § 2255 motion and grant respondent's motion to dismiss. Petitioner filed objections to the M&R, motion to expand the record (DE 109), and supplemental materials in support of the motion to vacate. In this posture, the issues raised are ripe for ruling. For the reasons stated herein, the court adopts the recommendation of the M&R, grants respondent's motion to dismiss, grants the motion to expand the record, and denies the motion to vacate.

         BACKGROUND

         Indictment filed November 28, 2012, charged petitioner with ten counts: 1) conspiracy to distribute cocaine, oxycodone, methadone, and marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (count one); 2) distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) (counts two and three); 3) distribution of marijuana in violation of 21 U.S.C. § 841(a)(1) (counts four and five); 3) distribution of oxycodone in violation of 21 U.S.C. § 841(a)(1) (count six); 4) distribution of methadone in violation of 21 U.S.C. § 841(a)(1) (count seven); 5) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (count eight); 6) felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and 924 (count nine); and 7) possession of a machinegun, in violation of 18 U.S.C. §§ 922(o) and 924(a)(2) (count ten).

         Petitioner pleaded guilty, pursuant to a written plea agreement, on March 13, 2013, to counts one and nine, with remaining counts to be dismissed. Petitioner was sentenced on April 8, 2014, to a total term of imprisonment of 78 months. Petitioner appealed, and the Fourth Circuit dismissed in part and affirmed in part. Petitioner filed the instant motion to vacate on January 5, 2015, asserting six claims: 1) the magistrate judge did not have authority to preside over his guilty plea and Rule 11 hearing; 2) that trial counsel was ineffective for allowing a magistrate judge to preside over petitioner's Rule 11 hearing; 3) that appellate counsel was ineffective for failing to challenge on appeal the fact that the magistrate judge presided over petitioner's Rule 11 hearing; 4) that the magistrate judge erred by not personally addressing petitioner in open court during the Rule 11 hearing; 5) that trial counsel was ineffective by providing an inaccurate forecast of petitioner's likely sentence if he pleaded guilty; and 6) that sentencing counsel was ineffective in allowing petitioner to be sentenced “based on incorrect information.” The government moves to dismiss on the basis that several claims are procedurally defaulted and all claims are without merit.

         COURT'S DISCUSSION

         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.” 28 U.S.C. § 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.” 28 U.S.C. § 2255(b).

         B. Analysis

         1. Motion to Expand the Record

         Petitioner seeks to expand the record to add a sworn affidavit in support of his claims. The motion is ALLOWED and the court considers petitioner's affidavit in conjunction with other materials in the record.

         2. Motion to Vacate

         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 petitioner's affidavit and additional supplemental filings, the court adopts and incorporates herein as its own the M&R's discussion of petitioner's claims, finding that the M&R correctly determined that petitioner's claims lack merit, including claims regarding authority of the magistrate judge to consider petitioner's plea, as well as ineffective ...


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