United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter is before the court on petitioner's motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255, as amended, (DE 68, 79) and
respondent's motion to dismiss (DE 81). The court
previously granted in part and denied in part the motion to
dismiss, leaving petitioner's claim of ineffective
assistance of counsel for evidentiary hearing. 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 102), wherein it is recommended
that the court deny petitioner's motion and grant
respondent's motion. Thereafter, petitioner objected to
M&R. In this posture, the issue raised are ripe for
ruling. For the following reasons, the court adopts the
M&R, denies petitioner's § 2255 motion, and
grants respondent's motion.
pleaded guilty on March 15, 2017, pursuant to a written plea
agreement, to possession of one or more firearms by a
convicted felon, in violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2). The court sentenced petitioner, on
January 29, 2018, to a term of imprisonment of 82 months.
Petitioner did not appeal.
filed his first instant motion to vacate on April 6, 2018,
asserting that his guidelines sentencing range was improperly
calculated in light of the decision by the United States
Court of Appeals for the Fourth Circuit in United States
v. McCollum, 885 F.3d 300, 303 (4th Cir. 2018). Upon the
government's first motion to dismiss this claim,
petitioner responded by asserting an additional claim based
upon ineffective assistance of counsel on appeal.
19, 2018, the court denied the government's first motion
to dismiss and directed petitioner to file an amended §
2255 motion on the correct form including his newly-asserted
ineffective assistance of counsel claim.
filed the instant amended § 2255 motion on July 10,
2018, asserting as his first claim that counsel was
ineffective in failing to file an appeal after being
instructed to do so by petitioner. As his second claim,
petitioner contends that the offense of North Carolina
conspiracy to commit robbery, which was used as a predicate
offense in calculating his guidelines sentencing range, is
not a qualifying crime of violence.
respondent's motion to dismiss, the court dismissed
petitioner's second claim as a matter of law and referred
petitioner's first claim to magistrate judge for
evidentiary hearing. At evidentiary hearing on May 16, 2019,
the court heard testimony of defendant and defendant's
trial counsel. M&R entered on July 15, 2019, recommending
denial of petitioner's first claim. Counsel appointed for
purposes of evidentiary hearing withdrew, and petitioner
filed pro se objections to the M&R on December 11, 2019.
Standard of Review
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. §
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.
first claim, which remains for adjudication, petitioner
asserts that counsel was ineffective in failing to file an