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Watson v. United States

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

February 28, 2017



          LOUISE W. FLANAGAN United States District Judge

         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 87), and the government's motion to dismiss, made pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE 92). Pursuant to 28 U.S.C. § 636(b)(1)(B), United States Magistrate Judge Robert B. Jones, Jr., entered a memorandum and recommendation (“M&R”) (DE 112), wherein it is recommended that the court deny petitioner's motion and grant respondent's motion. Petitioner filed objections to the M&R, and the government responded. 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 motion, and grants respondent's motion.


         Indictment filed October 25, 2011, charged petitioner with possession of firearm by convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924. On January 9, 2012, petitioner pleaded not guilty to the charge at arraignment, and the matter was set for trial to commence April 6, 2012. On March 28, 2012, the government filed a superseding indictment charging petitioner with conspiracy to distribute and possess 280 grams or more of cocaine base, in violation of 21 U.S.C. §§ 840(a)(1) and 846 (count one); and possession of firearm by convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924 (count two). Petitioner pleaded not guilty to the superseding indictment on April 5, 2012, and elected to proceed to trial as scheduled.

         On April 10, 2012, after a three day trial, a jury found petitioner guilty as to count one and not guilty as to count two. The court sentenced petitioner on July 19, 2012, to a 222 month term of imprisonment. Petitioner appealed, and the court of appeals affirmed the conviction on August 6, 2013, with certiorari denied on December 2, 2013. Petitioner timely filed the instant § 2255 motion on November 26, 2014, asserting that his trial counsel was ineffective for failing to adequately investigate two witnesses, Shante Fleming (“Fleming”) and Larodrick Horne (“Horne”), and to offer their testimony for trial and sentencing. The government filed a motion to dismiss on January 6, 2015, arguing that petitioner's claims are without merit.

         Counsel for petitioner in this § 2255 matter filed a notice of appearance on January 8, 2015. On March 15, 2016, petitioner's sentence was reduced to 178 months imprisonment pursuant to 18 U.S.C. § 3582(c)(2). The magistrate judge held an evidentiary hearing on petitioner's claims, at which petitioner testified and presented testimony by Fleming, and the government presented testimony by trial counsel, Ryan Willis (“Willis”).


         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 asserts arguments in support of his claims, which the M&R cogently and thoroughly addressed. Upon de novo review of petitioner's arguments and the record in this case, 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 at trial and sentencing lack merit.

         The court writes separately to augment analysis in the M&R that petitioner failed to establish counsel's performance was constitutionally deficient at trial. “Judicial scrutiny of counsel's performance must be highly deferential.” Strickland v. Washington, 466 U.S. 668, 689 (1984). “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id. “Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (quotations omitted).

         “[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id. at 690-91. “In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. at 691. “The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions.” Id. “Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.” Id.

         Petitioner contends that trial counsel was ineffective in failing to investigate and call for trial Fleming or Horne, after petitioner suggested them as potential defense witnesses. In light of the circumstances presented to counsel at the time of trial, however, counsel's decision to proceed with trial without investigating Fleming or Horne and presenting their testimony was reasonable. Statements and actions at pre-trial hearing on April 5, 2012, the day before trial was scheduled to commence, provide substantial contemporaneous evidence regarding counsel's perspective at the time, consistent with counsel's testimony at evidentiary hearing.

         In particular, at hearing, the court reiterated to petitioner his rights to call witnesses and to have further time to investigate, upon the filing of the superseding indictment:

You've got the right to be represented by an attorney; to call witnesses to come into Court to testify in support of your defense; to take the witness stand, if you want to. You don't have to, because you've got that right to remain silent. You've got the right to have an appropriate period of time to investigate the allegations made in Count 1 as well as the other count, and to have an opportunity to prepare further for trial.

(DE 77 at 3) (emphasis added). The court noted that the purpose of the hearing was to make sure that petitioner was “ready to go forward.” (Id. at 4). The court gave petitioner some initial time to confer with his counsel regarding the rights explained, and counsel affirmed following consultation that petitioner fully understood his rights with regard to the new count. (Id.). When the court asked counsel whether petitioner would like more time to make any motions with respect to the new count, counsel conferred again with petitioner. At that point, counsel explained in detail the perspective of counsel and petitioner at the time with respect to strategy going into trial:

Your Honor, what I would just inform the Court, in order to put it on the record with regard to the new count, the government did provide us notice probably a month ago, at least, that they had information that could support a new count in the superseding indictment. And my client and I have discussed that on several occasions, even before the indictment came ...

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