United States District Court, E.D. North Carolina, Northern Division
W. FLANAGAN United States District Judge.
matter is before the court on petitioner's motion to
vacate, set aside, or correct sentence under 28 U.S.C. §
2255 (DE 60) and the government's motion to dismiss (DE
67). Pursuant to 28 U.S.C. § 636(b)(1)(B), United States
Magistrate Judge Robert T. Numbers, II, entered a memorandum
and recommendation (“M&R”) (DE 75), wherein
it is recommended that this court deny petitioner's
motion to vacate and grant the government's motion to
dismiss. Petitioner filed objections to the M&R. In this
posture, the issues raised are ripe for ruling. For the
reasons stated herein, this court adopts the recommendation
of the M&R, denies petitioner's motion to vacate, and
grants the government's motion to dismiss.
14, 2013, petitioner pleaded guilty, pursuant to a written
agreement, to the following: conspiracy to distribute and
possess with intent to distribute 280 grams or more of
cocaine base (crack) and five kilograms or more of cocaine,
in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)
(Count One); and money laundering, in violation of 18 U.S.C.
§ 1956(a)(1)(B)(i) (Count Two). On July 8, 2014, this
court sentenced petitioner to 273 months imprisonment on
Count One and 240 months imprisonment on Count Two, to be
served concurrently. Petitioner appealed, and the Fourth
Circuit Court of Appeals affirmed. See United States v.
Baum, 604 F. App'x 295 (4th Cir. 2015).
did not file a petition for certiorari with the Supreme
Court. Petitioner filed the instant motion to vacate on March
14, 2016, asserting four claims of ineffective assistance of
counsel. On April 8, 2016, this court reduced
petitioner's sentence to 221 months on Count One,
pursuant to 18 U.S.C. § 3582(c)(2). On April 25,
2016, the government filed the instant motion to dismiss. On
May 15, 2017, the magistrate judge entered an M&R.
Petitioner then filed objections to the M&R, to which the
government filed a response in opposition.
Standard of Review
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. §
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.” Id. § 2255(b).
Petitioner makes three arguments in his objections.
See Objections (DE 76). Initially, petitioner argues
that his trial counsel provided ineffective assistance of
counsel by advising him to plead guilty to the money
laundering charge (Count Two). Id. at 3-5. Next,
petitioner argues that the M&R erred in finding that his
trial counsel's failure to object to the three-level role
enhancement was not ineffective assistance of counsel.
Id. at 5-6. Finally, petitioner argues that his
trial counsel provided ineffective assistance of counsel by
failing to investigate and make arguments in support of a
reduced drug quantity. Id. at 7-8.
order to establish ineffective assistance of counsel, a
petitioner must satisfy a two-pronged test. See
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Under the first prong, a petitioner must show that his
counsel's representation “fell below an objective
standard of reasonableness.” Id. at 688. The
court must be “highly deferential” to
counsel's performance and must make every effort to
“eliminate the distorting effects of hindsight.”
Id. at 689. Therefore, the court must “indulge
a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance.”
Id. The second prong requires a petitioner to show
that he was prejudiced by the ineffective assistance by
showing “a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.” Id. at
Advice regarding plea
petitioner argues that his trial counsel provided ineffective
assistance by advising him to plead guilty to the money
laundering charge (Count Two). See Objections (DE
76) at 3-5. Petitioner contends that his trial counsel
ignored the issue of guilt or innocence and merely
recommended that he plead guilty to allow for favorable
negotiations. Id. at 4. Petitioner further contends
that he was prejudiced because his sentence was “19
months longer than it would have been.” Id. at
5. Petitioner concludes that his ...