Garrett v. USA

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATION DKT. NO. 19 , OVERRULING OBJECTIONS DKT. NOS. 20 , DENYING MOTION FOR EVIDENTIARY HEARING AND TO APPOINT COUNSEL DKT. NO. 14 , AND DENYING PETITION PURSUANT TO 28 U.S.C. § 2255 DKT. NO. 1 . Court DISM ISSES this case WITH PREJUDICE and DENIES a certificate of appealability. Clerk directed to enter a separate judgment order, and to remove this case from the Courts active docket. Signed by Senior Judge Irene M. Keeley on 2/5/2020 (copy pro se petitioner via certified mail). (jmm) (Additional attachment(s) added on 2/5/2020: # 1 Certified Mail Return Receipt) (jmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JOSEPH A. GARRETT,
Petitioner,
v.

CIVIL ACTION NO. 1:16CV218
CRIMINAL ACTION NO. 1:14CR57
(Judge Keeley)

UNITED STATES OF AMERICA,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 19],1
OVERRULING OBJECTIONS [DKT. NOS. 20], DENYING MOTION FOR
EVIDENTIARY HEARING AND TO APPOINT COUNSEL [DKT. NO. 14],
AND DENYING PETITION PURSUANT TO 28 U.S.C. § 2255 [DKT. NO. 1]
On February 6, 2015, a jury sitting in the Northern District
of West Virginia convicted the petitioner, Joseph A. Garrett
(“Garrett”), of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1), and possessing a NFA firearm
not registered to a person in the national firearms registration
and transfer record, in violation of 26 U.S.C. § 5861(d) (1:14CR57,
Dkt. No. 80). On June 1, 2015, Garrett was sentenced to concurrent
sentences of 120 months of imprisonment followed by three years of
supervised release (1:14CR47, Dkt. No. 90).2 The Fourth Circuit
1

All docket numbers refer to Civil Action No. 1:16CV218, unless
otherwise noted.
2

Garrett was separately charged and pleaded guilty to a superseding
indictment for failure to update sex offender registration, in violation
of 18 U.S.C. § 2250(a) (“SORNA violation”). See 1:14CR48. The judgment
was entered for both criminal cases and the Court sentenced Garrett to
a consecutive 27 months of imprisonment for the SORNA violation, for a
total sentence of 147 months of imprisonment (Case No. 1:14CR47, Dkt. No.
90). In addition, Garrett was ordered to serve a term of 6 years of

GARRETT V. USA

1:16CV218

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 19],
OVERRULING OBJECTIONS [DKT. NOS. 20], DENYING MOTION FOR
EVIDENTIARY HEARING AND TO APPOINT COUNSEL [DKT. NO. 14],
AND DENYING PETITION PURSUANT TO 28 U.S.C. § 2255 [DKT. NO. 1]
affirmed Garrett’s sentence on April 15, 2016 (1:14CR57, Dkt. No.
110).
On November 14, 2016, Garrett filed a timely petition to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C. §
2255 (“Petition”) (Dkt. No. 1), alleging that his attorney had
provided ineffective assistance because he (1) instructed a witness
not to testify that another individual had a gun, (2) did not
subpoena a witness to testify, (3) erroneously told Garrett that he
was going to win his case, and (4) did not object to certain
statements made by a government witness (Dkt. No. 1 at 6-7). Garrett
further argues that the Court erred when it denied his pro se motion
for a mistrial. Id.
Pursuant to 28 U.S.C. § 636 and this District’s Local Rules,
the Court referred the Petition to the Honorable Robert W. Trumble,
United States Magistrate Judge, for initial review. On July 28,
2018, Magistrate Judge Trumble filed a Report and Recommendation
(“R&R”) recommending that the Petition be denied and dismissed with
prejudice (Dkt. No. 19).

supervised release for the SORNA violation, to run concurrently with the
3 year term of supervision in 1:14CR57. Id. Garrett’s SORNA violation is
the subject of a separate § 2255 motion. See 1:16CV217.
2

GARRETT V. USA

1:16CV218

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 19],
OVERRULING OBJECTIONS [DKT. NOS. 20], DENYING MOTION FOR
EVIDENTIARY HEARING AND TO APPOINT COUNSEL [DKT. NO. 14],
AND DENYING PETITION PURSUANT TO 28 U.S.C. § 2255 [DKT. NO. 1]
To prevail on a claim of ineffective assistance of counsel,
Garrett must establish both that his counsel’s performance was
deficient

and

that

the

deficient

performance

prejudiced

him.

Strickland v. Washington, 466 U.S. 668 (1984). Magistrate Judge
Trumble found that Garrett’s four arguments regarding ineffective
assistance of counsel lacked merit and concluded he had failed to
satisfy Strickland’s two-pronged test. Id. at 5-9.
Magistrate
argument

Judge

regarding

Trumble

his

further

motion

for

concluded

mistrial

that

was

Garrett’s

procedurally

defaulted because he had not raised the argument on direct appeal.
He also concluded that the motion was without merit because the
decision to move for a mistrial rests solely with counsel. Id. at 911. See also Bousley v. United States, 523 U.S. 614, 621 (1998);
United States v. Chapman, 593 F.3d 365, 368 (4th Cir. 2010). After
finding it clear from the pleadings, files, and records that Garrett
was not entitled to relief, Magistrate Judge Trumble recommended
that

the

Court

deny

Garrett’s

separately

filed

motion

for

evidentiary hearing and for appointment counsel. Id. at 11-12; Dkt.
No. 14. See also 28 U.S.C. 2255(b); United States v. Witherspoon,
231 F.3d 923 (4th Cir. 2000). After being informed of his right to
file

“written

objections

identifying
3

the

portions

of

the

GARRETT V. USA

1:16CV218

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 19],
OVERRULING OBJECTIONS [DKT. NOS. 20], DENYING MOTION FOR
EVIDENTIARY HEARING AND TO APPOINT COUNSEL [DKT. NO. 14],
AND DENYING PETITION PURSUANT TO 28 U.S.C. § 2255 [DKT. NO. 1]
recommendation to which objections are made and the basis for such
objections” (Dkt. No. 19 at 12), Garrett filed timely objections
(Dkt. No. 20).
When reviewing a magistrate judge’s R&R, the Court must review
de novo only those portions to which an objection is timely made. 28
U.S.C. § 636(b)(1)(C). On the other hand, “the Court may adopt,
without explanation, any of the magistrate judge’s recommendations
to which the prisoner does not object.” Dellacirprete v. Gutierrez,
479 F. Supp. 2d 600, 603-04 (N.D.W. Va. 2007) (citing Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will uphold those
portions of a recommendation to which no objection has been made
unless they are “clearly erroneous.” See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
Vague objections to an R&R distract a district court from
“focusing on disputed issues” and defeat the purpose of an initial
screening by the magistrate judge. McPherson v. Astrue, 605 F. Supp.
2d 744, 749 (S.D.W. Va. 2009) (citing Howard’s Yellow Cabs, Inc. v.
United States, 987 F. Supp. 469, 474 (W.D.N.C. 1997)). Failure to
raise specific errors waives the claimant’s right to a de novo
review because “general and conclusory” objections do not warrant
such review. Id. (citing Orpiano v. Johnson, 687 F.2d 44, 47 (4th
4

GARRETT V. USA

1:16CV218

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 19],
OVERRULING OBJECTIONS [DKT. NOS. 20], DENYING MOTION FOR
EVIDENTIARY HEARING AND TO APPOINT COUNSEL [DKT. NO. 14],
AND DENYING PETITION PURSUANT TO 28 U.S.C. § 2255 [DKT. NO. 1]
Cir. 1982); Howard’s Yellow Cabs, 987 F. Supp. at 474); see also
Green v. Rubenstein, 644 F. Supp. 2d 723 (S.D.W. Va. 2009). Indeed,
failure to file specific objections waives appellate review of both
factual and legal questions. See United States v. Schronce, 727 F.2d
91, 94 & n.4 (4th Cir. 1984); see also Moore v. United States, 950
F.2d 656, 659 (10th Cir. 1991).
Here, Garrett’s objections fall short of his obligation to
identify specific errors in Magistrate Judge Trumble’s findings.
(Dkt. No. 20). Garrett merely reiterates the arguments from his
Petition alleging his trial counsel acted inappropriately and lied
and contending that defendants, rather than their counsel, should be
permitted to make the tactical decision whether to seek a mistrial.
Id. at 1.
The remainder of Garrett’s objections attempt to undermine the
credibility of the government’s eyewitnesses who testified at trial,
an issue which, as the Fourth Circuit explained in its decision
affirming the judgment in Case No. 1:14CR57, was “within the sole

province of the jury.” United States v. Garrett, 645 F. App’x 256,
258

(4th

Cir.

2016)

(per

curiam)

(quoting

United

States

v.

Louthian, 756 F.3d 295, 303 (4th Cir. 2014). These reiterations and
contentions, all of which were fully and fairly addressed in the
5

GARRETT V. USA

1:16CV218

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 19],
OVERRULING OBJECTIONS [DKT. NOS. 20], DENYING MOTION FOR
EVIDENTIARY HEARING AND TO APPOINT COUNSEL [DKT. NO. 14],
AND DENYING PETITION PURSUANT TO 28 U.S.C. § 2255 [DKT. NO. 1]
R&R, place the Court under no obligation to conduct a de novo
review. Diamond, 414 F.3d at 315.
Therefore, after reviewing the R&R and the record for clear
error, the Court:
•

ADOPTS the R&R (Dkt. No. 19);

•

OVERRULES Garrett’s objections (Dkt. No. 20);

•

DENIES Garrett’s motion for evidentiary hearing and to
appoint counsel (Dkt. No. 14);

•

DENIES the Petition (Dkt. No. 1); and

•

DISMISSES this case WITH PREJUDICE.

It is so ORDERED.
CERTIFICATE OF APPEALABILITY
Pursuant

to

Rule

11(a)

of

the

Rules

Governing

§

2255

Proceedings, the district court “must issue or deny a certificate
of appealability when it enters a final order adverse to the
applicant” in such a case. If the court denies the certificate, “a
party may not appeal the denial but may seek a certificate from the
court of appeals under Federal Rule of Appellate Procedure 22.” 28
U.S.C. foll. § 2255(a).

6

GARRETT V. USA

1:16CV218

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 19],
OVERRULING OBJECTIONS [DKT. NOS. 20], DENYING MOTION FOR
EVIDENTIARY HEARING AND TO APPOINT COUNSEL [DKT. NO. 14],
AND DENYING PETITION PURSUANT TO 28 U.S.C. § 2255 [DKT. NO. 1]
The Court finds it inappropriate to issue a certificate of
appealability in this matter because Garrett has not made a
“substantial showing of the denial of a constitutional right.” See
28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard by
demonstrating

that

reasonable

jurists

would

find

that

any

assessment of the constitutional claims by the district court is
debatable or wrong, and that any dispositive procedural ruling by
the

district

court

is

likewise

debatable.

See

Miller–El

v.

Cockrell, 537 U.S. 322, 336–38 (2003). Upon review of the record,
the Court concludes that Garrett has failed to make the requisite
showing, and DENIES a certificate of appealability.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and the pro se petitioner, certified mail,
return receipt requested, to enter a separate judgment order, and
to remove this case from the Court’s active docket.
DATED: February 5, 2020
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

7