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Baum v. United States

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

July 17, 2017

MAURICE BAUM, 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 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.

         BACKGROUND

         On May 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).

         Petitioner 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).[1] 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.

         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.” Id. § 2255(b).

         B. Analysis

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.

         In 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 694.

         1. Advice regarding plea

         Initially, 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 ...


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