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Drummond v. United States

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

April 1, 2019

MAURICE ANTHONY DRUMMOND, 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 his sentence under 28 U.S.C. § 2255, (DE 55), and the government's motion to dismiss, (DE 63). Pursuant to 28 U.S.C. § 636(b)(1)(B), United States Robert T. Numbers, II entered memorandum and recommendation (“M&R”), (M&R (DE 67)), wherein it is recommended that the court deny petitioner's motion and grant respondent's motion. Petitioner timely filed objections to the M&R, and in this posture, the issues raised are ripe for ruling. For the reasons that follow, the court adopts the recommendation of the M&R, denies petitioner's motion, and grants respondent's motion.

         BACKGROUND

         On March 16, 2016, pursuant to a written plea agreement, petitioner pleaded guilty to conspiracy to commit access device fraud, in violation of 18 U.S.C. § 1029(b)(2) (count one), and aggravated identity theft and aiding and abetting, in violation of 18 U.S.C. §§ 1028A(a)(1) (count two). The court sentenced petitioner on November 2, 2016, to 51 months' imprisonment on count one and 24 months' imprisonment, consecutive, on count two, for a total of 75 months' imprisonment. Petitioner did not appeal his judgment.

         On July 24, 2017, petitioner filed motion to vacate under 28 U.S.C. § 2255, alleging his defense counsel was ineffective for 1) erroneously advising him regarding the “conspiracy” element in count one; 2) failing to conduct an investigation into the interrogation of petitioner on the day of his arrest; and 3) improperly advising the magistrate judge regarding the facts of his case at his arraignment hearing.

         On August 28, 2017, the government filed its motion to dismiss petitioner's § 2255 motion. On April 24, 2018, the magistrate judge issued M&R, recommending denial of petitioner's motion and grant of the government's motion. On June 8, 2018, petitioner filed objection to the M&R, presenting the same arguments to this court as petitioner presented in support of his original 2255 motion, (compare DE 72 with DE 64), but additionally and briefly arguing that his guilty plea was “involuntary because the counsel was constitutionally ineffective in assuring Mr. Drummond that the government did not [have] to provide one of the essential elements of the alleged crime in Count One.” (DE 72 at 2).

         COURT'S DISCUSSION

         A. Standard of Review

         The district court reviews de novo those portions of the 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). “The Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure, to the extent that they are not inconsistent with any statutory provisions, or the [§ 2255 Rules], may be applied to” § 2255 proceedings. Rules Governing Section 2255 Proceedings, Rule 12.

         B. Analysis

         Analysis of an ineffective assistance of counsel claim requires application of the two-part test established by Strickland v. Washington, 466 U.S. 668, 690-94 (1984). First, the petitioner must show that his counsel's performance was deficient in that it fell below the standard of reasonably effective assistance. Id. at 687-691. Second, the petitioner must show that there is a reasonable probability that, but for his counsel's errors, the result of the proceeding would have been different. Id. at 694. The Sixth Amendment provides a criminal defendant with the right to competent counsel that “extends to the plea-bargaining process.” Lafler v. Cooper, 566 U.S. 156, 162 (2012).

         Petitioner asserts in his original motion and repeats in his objections to the magistrate judge's recommendations that he “does not dispute the Rule 11 colloquy but suggests the plea is involuntary because the counsel was constitutionally ineffective in assuring Mr. Drummond that the government did not [need] to provide one of the essential elements of the alleged crime in Count One.” (DE 72 at 2). In petitioner's original motion, petitioner states his counsel “incompetently advised Movant that the government does not have to prove beyond a reasonable doubt there was at least one other in the conspiracy to commit access device fraud.” (DE 55-1 at 2). Petitioner additionally references his affidavit submitted in conjunction with his original motion which states his counsel “failed to explain to me the government has the burden to prove there was an agreement to commit the crime allege[d] with another person.” (DE 55-1 at 9).

         As addressed by the magistrate judge, petitioner admitted repeatedly that he conspired with others to commit access device fraud and that he was guilty of count one. (See, e.g., M&R (DE 67) at 8 (“When the court questioned whether Drummond had knowingly conspired with others with the intent to defraud, produce, use, or traffic in one or more counterfeit access devices affecting interstate commerce, Drummond admitted that he had.”); id. at 9 (“the Plea Agreement, which he signed, acknowledges that Drummond ‘and at least one other person combined, conspired, confederated, and agreed . . . to knowingly and with intent to defraud[, ] produce, use, or traffic in one or more counterfeit access devices in and ...


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