Overman v. USA

Filing 23

ORDER OF DISMISSAL ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE for 20 Report and Recommendations. It is accordingly ORDERED that Movant's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Cu stody (#1) pursuant to 28 U.S.C. § 2255 is DENIED and DISMISSED with prejudice. A certificate of appealability is DENIED. All motions by either party not previously ruled upon are DENIED. Signed by District Judge Marcia A. Crone on 3/25/2019. (daj, )

UNITED STATES DISTRICT COURT

GRADY DANE OVERMAN, #22269-078
versus
UNITED STATES OF AMERICA

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 4:15-CV-783
CRIMINAL ACTION NO. 4:14-CR-23(1)

ORDER OF DISMISSAL
The above-entitled and numbered civil action was referred to United States Magistrate
Judge Kimberly C. Priest Johnson, who issued a Report and Recommendation (#20) concluding
that the motion to vacate, set aside, or correct sentence filed pursuant to 28 U.S.C. § 2255 should
be denied and dismissed with prejudice. Movant filed objections (#22).
The Report of the Magistrate Judge, which contains proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration, along
with Movant’s objections. In his objections, Movant reurges the issues originally raised in his
motion, and discusses in more detail information that Tanya Johnson provided in her affidavits.
He reurges that counsel was ineffective for failing to interview her. Nothing in Johnson’s
affidavits, however, changes the outcome of this case.
Johnson states that, during the execution of the search warrant, officers took Movant, who
was inebriated, into a different room from her and her child, and they were kept segregated until
the officers left. At one point, Johnson was asked to provide a glass of water, which an officer
gave to Movant. The Court notes this information is almost identical to that provided by Movant.
Johnson also states, “I have always made it known that I will testify on [Movant’s] behalf.” While
Johnson’s last statement shows a willingness to testify on Movant’s behalf, it does not show that
her testimony would have made a difference to Movant’s case. Alexander v. McCotter, 775 F.2d

595, 602 (5th Cir. 1985). Most of the information Johnson provided is duplicative of Movant’s
statements. The Court also notes that intoxication does not singularly or automatically render a
confession involuntary. See United States v. Garcia Abrego, 141 F.3d 142, 170-71(5th Cir. 1998).
Even without Movant’s confession, the record shows an overwhelming amount of digital and
forensic evidence of child pornography found on Movant’s computer, which was seized pursuant
to a valid search warrant supported with probable cause.
In sum, Movant fails to show that counsel’s alleged failure in interviewing Johnson or
counsel’s failure to file a motion to suppress makes a difference to the outcome of his case.
Movant has not shown that a suppression motion would have been granted, that counsel’s failure
to file it was objectively unreasonable, and that, but for counsel’s alleged deficient performance
in that matter, he would not have pleaded guilty. United States v. Ratliff, 719 F.3d 422, 423 (5th
Cir. 2013). Movant also fails to show that, but for counsel’s alleged deficient performance, the
result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694
(1984). Having made a de novo review of the objections raised by Movant to the Report, the
Court concludes the findings and conclusions of the Magistrate Judge are correct, and the
objections of Movant are without merit.
It is accordingly ORDERED that Movant’s Motion to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (#1) pursuant to 28 U.S.C. § 2255 is DENIED and
DISMISSED with prejudice. A certificate of appealability is DENIED. All motions by either
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party not previouslyBeaumont, Texas, this 7th day of September, 2004.
SIGNED at ruled upon are DENIED.
SIGNED at Beaumont, Texas, this 25th day of March, 2019.
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MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
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