Campbell v. United States of America
(FILED IN ERROR) ORDER granting 30 Motion to Dismiss for Failure to State a Claim; adopting in full 39 Report and Recommendation as supplemented; dismissing 1 and 22 Petition for habeas corpus; denying 42 Motion to Amend. A certificate of appealability is denied. Signed by U.S. District Judge Karen E. Schreier on 8/22/17. (DJP) Modified on 8/22/2017 (DJP).
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
UNITED STATES OF AMERICA,
ORDER ADOPTING REPORT
AND DISMISSING MOTIONS
Petitioner, Carl Campbell, filed a motion to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255. (Docket 1 and 22). The United States
now moves to dismiss Campbell’s § 2255 motion without holding an evidentiary
hearing. (Docket 30). The matter was assigned to United States Magistrate
Judge Veronica L. Duffy under 28 U.S.C. § 636(b)(1)(B) and this court’s October
16, 2014, standing order. Magistrate Judge Duffy recommends granting the
United States’s motion to dismiss. (Docket 30). Campbell timely filed his
objection to the report and recommendation. (Docket 41). Campbell also moves
to amend his § 2255 motion. (Docket 42). For the following reasons, the court
adopts Magistrate Judge Duffy’s report and recommendation, dismisses
Campbell’s § 2255 motion, and denies his motion to amend.
A full factual background was provided by Magistrate Judge Duffy in her
report and recommendation. (Docket 39). Campbell’s only factual objection to
the Report and Recommendation addresses dates relied on in pages 28-33.
(Docket 41). Therefore, with the exception of the objected to dates, this court
will rely on the magistrate judge’s report and recommendation for the full
STANDARD OF REVIEW
The court’s review of a magistrate judge’s report and recommendation is
governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil
Procedure. The court reviews de novo any objections to the magistrate judge’s
recommendations with respect to dispositive matters that are timely made and
specific. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). In conducting its de
novo review, this court may then “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); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
The Report and Recommendation
Campbell has ten objections to the Report and Recommendation. (Docket
41). First, he objects to the factual finding that the police interview of L.O.
occurred on February 3, 2011. He claims it occurred on February 3, 2012. Id.
Campbell also states there is a July 27, 2012, law enforcement interview of
L.O. to which he has been denied access. Id.
After de novo review of Campbell’s first objection, the court finds that the
facts are accurately stated in the report and recommendation. Campbell claims
counsel was ineffective, because counsel failed to impeach L.O. or object to her
testimony. The testimony of a witness may be discredited or impeached by
showing that she previously made statements that are inconsistent with her
present testimony. Fed. R. Evid. 613. After a review of the record, there are no
inconsistent statements to use for impeachment. The trial record shows L.O.
testified that Campbell never pressured her to do anything. See JT at Docket
No. 129-2 at p. 74. Furthermore, L.O. testified that she was the person who
initiated the request that led to an attempted commercial sex act. See id. at
pp.65-66. Because defense counsel elicited this testimony from L.O., there was
no need to impeach her.
As to the date of the February 3, 2011, interview, Campbell himself refers
to a February 3, 2011, interview in his brief in opposition to the government’s
motion to dismiss for failure to state a claim. See Docket 35 at pp. 49-50.
Furthermore, Campbell’s objection fails to provide a reason as to why the
sequence of interviews is relevant to impeaching L.O. Even if the February 3,
2011, interview was February 3, 2012, the content would not change and
create an inconsistent statement appropriate for impeachment.
As to the existence of the July 27, 2012, law enforcement interview,
Campbell alleges that the interview contains a statement by L.O. that he never
asked her to prostitute for him and never showed L.O. how to create and post a
Backpage ad. (Docket 41). As stated above, defense counsel elicited similar
testimony without referencing a July 27, 2012, interview. Therefore, Campbell
has not shown he was prejudiced.
Campbell’s remaining nine objections to the report and recommendation
are objections to the legal conclusions. The objections are conclusory without
argument. The court has conducted a de novo review of the remainder of the
report and recommendation, and adopts it in full.
The government moves to dismiss Campbell’s motion without holding an
evidentiary hearing. (Docket 30). “A district court may deny an evidentiary
hearing where (1) accepting the petitioner's allegations as true, the petitioner is
not entitled to relief, or (2) ‘the allegations cannot be accepted as true because
they are contradicted by the record, inherently incredible, or conclusions rather
than statements of fact.’ ” Guzman-Ortiz v. United States, 849 F.3d 708, 715
(8th Cir. 2017) (quoting United States v. Sellner, 773 F.3d 927, 929–30 (8th Cir.
2014)). Here, an evidentiary hearing is not required because even if the alleged
contents of the July 27, 2012, interview were as Campbell stated, he would not
be entitled to relief, because there is no inconsistent statement.
Motion to Amend
Campbell moves to amend his amended § 2255 motion. (Docket 42). “A
party may amend its pleading once as a matter of course within . . . 21 days after
serving it[.]” Fed. R. Civ. P. 15(a)(1). “In all other cases, a party may amend its
pleading only with the opposing party's written consent or the court's leave. The
court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2).
The motion to amend was filed after the United States filed its answer and after
Campbell had previously amended his complaint. (Docket 29 and 40). The
United States has not provided written consent to Campbell’s motion to amend.
Therefore, Campbell needs leave of court to amend his complaint.
The court finds that justice does not require that Campbell be granted
leave to amend his amended complaint, because it would be futile. Motions to
amend should be freely given in order to promote justice but may be denied
when such an amendment would be futile. Plymourth County, Iowa v. Merscorp,
Inc., 774 F.3d 1155, 1160 (8th Cir. 2015) (citing Wisdom v. First Midwest Bank,
167 F.3d 402, 409 (8th Cir. 1999)). In his second motion to amend, Campbell’s
allegation – that the jury instruction in his case constructively amended his
indictment – is baseless. Campbell cites United States v. Davis, No. 15-10402,
(9th Cir. Apr. 14, 2017), in which the Ninth Circuit reversed part of a
defendant’s sentence because the indictment was constructively amended
when jury instructions were given based on 18 U.S.C. § 1591(c), while the
indictment only alleged a count under 18 U.S.C. § 1591(a). See Brief of
Petitioner-Appellant’s Opening Brief at 29-34, Davis, No. 15-10402. While
Campbell received a similar jury instruction, Campbell’s indictment alleged a
charge under to 18 U.S.C. § 1591(c), and therefore the jury instruction did not
constructively amend the indictment. See CR Docket 40. Because the
amendment would be futile, the motion to amend is denied.
After a review of Magistrate Judge Duffy’s report and recommendation
and Campbell’s objections, the court finds no error in the report.
Thus, it is ORDERED
1. The report and recommendation (Docket 39) is adopted in full as
2. Respondent’s motion to dismiss (Docket 30) is granted.
3. Campbell’s pro se petition for habeas corpus (Docket 1 and 22) is
4. Based upon the reasons stated and under Fed. R. App. P. 22(b), the
court finds that petitioner has not made a substantial showing of
denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Thus, a
certificate of appealability is denied.
5. Campbell’s motion to amend (Docket 42) is denied.
DATED August 22, 2017.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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