Walker v. USA
ORDER ADOPTING REPORT AND RECOMMENDATION: adopting 4 Report and Recommendation as to Arthur Lee Walker (2); and denying and dismissing with prejudice 1 Motion to Vacate (2255) as to Arthur Lee Walker (2). This matter is ORDERED STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter a separate judgment order in favor of the Respondent. The Petitioner has not met the requirements for issuance of a certificate of appealability. Signed by Chief Judge Gina M. Groh on 4/15/2016. Copy mailed to pro se petitioner by CMRR. (cwm) (Additional attachment(s) added on 4/15/2016: # 1 Certified Mail Return Receipt) (cwm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ARTHUR LEE WALKER,
CIVIL ACTION NOS.:
UNITED STATES OF AMERICA,
CRIM. ACTION NOS.:
ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before the Court for consideration of the
Report and Recommendation (“R&R”) [ECF No. 527] of United States Magistrate Judge
Robert W. Trumble.1 Pursuant to this Court’s Local Rules, this action was referred to
Magistrate Judge Trumble for submission of an R&R. Magistrate Judge Trumble issued
his R&R on February 25, 2016. In the R&R, he recommends that the Petitioner’s motion
under 28 U.S.C. § 2255 [ECF No. 363] be denied and dismissed with prejudice. The
magistrate judge further recommends that the Petitioner’s Motion to Compel [ECF No. 485]
be denied as moot. For the following reasons, this Court ORDERS that the magistrate
judge’s R&R is ADOPTED.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court is required to conduct a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, the Court is not required to review, under a de novo or any other standard, the
References to CM/ECF docket numbers herein refer to Criminal Action No. 3:13-CR-23-2. The
Petitioner filed certain identical documents in Criminal Action No. 3:13-CR-11-1. The Clerk’s Office has
maintained Civil Action Nos. 3:14-CV-77 and 3:14-CV-78 for statistical purposes.
factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150
(1985). Failure to file timely objections constitutes a waiver of de novo review and of a
party’s right to appeal a court’s order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889 F.2d
1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).
Here, the Petitioner has timely filed his objections [ECF No. 531],2 which the Court received
on March 14, 2016. Accordingly, this matter is now ripe for review.
The instant motion concerns the Petitioner’s federal convictions in the above-styled
criminal matters. The Petitioner was sentenced in this Court on January 13, 2014, after he
entered guilty pleas in Criminal Action No. 3:13-CR-11-1 and Criminal Action No. 3:13-CR23-2. Under his agreement with the Government, the Petitioner pleaded guilty to being a
felon in possession of a firearm (Count 3 in Criminal Action No. 3:13-CR-11-1) and to aiding
and abetting the distribution of cocaine base within 1,000 feet of a school (Count 42 in
Criminal Action No. 3:13-CR-23-2).
The Petitioner was sentenced to 120 months’
incarceration on both counts, with the sentences ordered to run concurrently with each
other. Those concurrent 120-month terms were ordered to run consecutively to a sentence
imposed by the Franklin County Court in Chambersburg, Pennsylvania. The Petitioner did
not file a direct appeal of his federal convictions and sentences.
On July 14, 2014, the Petitioner filed a motion to vacate and correct his sentence
in both of his federal criminal cases. His 28 U.S.C. § 2255 motion raised the following
Pursuant to the “prison mailbox rule,” the date an inmate delivers a document to prison officials for
forwarding to the clerk of court is considered to be the date of filing. Houston v. Lack, 487 U.S. 266, 276
grounds for relief: (1) the Government violated his Fifth Amendment right to due process
of law when it delayed for over twenty months before bringing an indictment in case number
3:13-CR-11-1, causing substantial prejudice to the Petitioner; (2) the Petitioner’s Fourth
Amendment rights were violated when law enforcement officers searched his residence,
because the warrant that provided the legal basis for that search was improperly obtained
and was not supported by probable cause; (3) the Petitioner’s Sixth Amendment right to
the effective representation of counsel was violated, primarily by his trial counsel’s decision
to advise the Petitioner to plead guilty; and (4) the Petitioner was sentenced to an
unconstitutional statutorily mandated sentence. Appended to the Petitioner’s § 2255
motion were multiple exhibits and other hand-written attachments that contained additional
factual averments and legal argument.
The Government responded in opposition to the Petitioner’s motion on July 31,
2014. At the outset of its response brief, the Government asserted that the Petitioner’s
plea agreement contained a valid waiver of his right to file a motion for post-conviction
relief. The Government then argued that the Petitioner could not demonstrate that he
suffered any actual prejudice from the delay in bringing the indictment against him in
Criminal Action No. 3:13-CR-11-1. The Government further argued that the Petitioner
should be precluded from asserting that officers tampered with evidence during the alleged
delay, because the Petitioner pleaded guilty to being a felon in possession of a firearm,
thereby foreclosing his ability to contest the factual basis for that plea.
As to the
Petitioner’s Fourth Amendment claim, the Government argued that a warrant for the search
of the Petitioner’s residence was supported by probable cause. The Government asserted
that the Petitioner’s Sixth Amendment ineffective assistance of counsel claim must fail
because the Petitioner expressed his satisfaction with his counsel’s representation prior to
pleading guilty, and because the Petitioner’s admission to possessing a firearm
demonstrated the reasonableness of his counsel’s advice to plead guilty.
Government contended that the Petitioner’s argument concerning his statutorily mandated
sentence should be rejected, in part because the Petitioner appeared to base his claim on
Alleyne v. United States, — U.S. —, 133 S. Ct. 2151 (2013), which is inapplicable to the
The Petitioner filed an additional brief in which he contested each argument raised
in the Government’s response. The Petitioner argued that his waiver of his right to
collaterally attack his sentence was not binding, because he had been coerced to agree
to the waiver by his attorney, who told the Petitioner that “his only option was to take a
plea.” The Petitioner further argued that the waiver was invalid because the Government
breached the terms of the plea agreement. In addition, the Petitioner disputed the
Government’s assertions regarding a pre-indictment delay, the alleged deficiencies of the
warrant to search the Petitioner’s residence, his claim of ineffective assistance of counsel,
and his argument that his sentence was unconstitutional.
On February 25, 2016, Magistrate Judge Trumble issued his R&R, in which he
recommends that the Petitioner’s motion be denied and dismissed with prejudice.
Specifically, the magistrate judge found that the Petitioner’s claims are barred by his valid
collateral attack waiver. Notwithstanding that finding (and an additional finding that several
of the Petitioner’s claims were procedurally defaulted because they were not raised on
direct appeal), the magistrate judge then reviewed the Petitioner’s claims on the merits.
The magistrate judge reached the following conclusions: any pre-indictment delay did not
violate the Petitioner’s due process rights; the warrant to search the Petitioner’s residence
was supported by probable cause; the Petitioner’s ineffective assistance of counsel claim
is without merit; and the Petitioner’s sentence was not the product of any unconstitutional
On March 14, 2016, the Court received what the Petitioner styles as his objections
to the R&R. That filing references the findings and recommendations of the magistrate
judge only once, when the Petitioner states that he “objects to each and every ground
raised by the U.S. Magistrate in the Report and Recommendation.” The remainder of the
Petitioner’s filing summarizes the facts and legal arguments behind each of his grounds for
relief, in a manner almost identical to the arguments presented in his § 2255 motion and
his response to the Government’s brief in opposition.
When a party files objections, “but these objections are so general or conclusory that
they fail to direct the district court to any specific error by the magistrate judge, de novo
review is unnecessary.” Green v. Rubenstein, 644 F. Supp. 2d 723, 730 (S.D. W. Va.
2009) (citing Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982)). Furthermore, a district
court is not obligated to conduct de novo review when an objecting party merely rehashes
the same arguments that have already been rejected by a magistrate judge. See Felton
v. Colvin, No. 2:12cv558, 2014 WL 315773, at *7 (E.D. Va. Jan. 28, 2014) (“The Court may
reject perfunctory or rehashed objections to R&R’s that amount to ‘a second opportunity
to present the arguments already considered by the Magistrate-Judge.’”) (quoting
Gonzalez-Ramos v. Empresas Berrios, Inc., 360 F. Supp. 2d 373, 376 (D.P.R. 2005));
Edwards v. Fischer, 414 F. Supp. 2d 342, 346-47 (S.D.N.Y. 2006) (“[W]here objections are
‘merely perfunctory responses,’ argued in an attempt to ‘engage the district court in a
rehashing of the same arguments set forth in the original petition,’ reviewing courts should
review a report and recommendation for clear error.”) (quoting Vega v. Artuz, 2002 WL
31174466, at *1 (S.D.N.Y. Sept. 30, 2002)); see also Davis v. Duncil, 81 F.3d 149 (4th Cir.
1996) (per curiam) (unpublished table decision) (rejecting a petitioner’s objections, which
were “presented as a memorandum nearly identical to his § 2254 petition,” because the
petitioner’s “rehash” did not “specify any objection to the magistrate judge’s factual or legal
recommendations”)). Here, the Petitioner fails to direct the Court to any error in the
magistrate judge’s analysis, and he does not address any specific aspect of the magistrate
judge’s findings. Instead, he rehashes the arguments he raised in his original motion and
in his response to the Government’s brief. In his R&R, the magistrate judge thoroughly
addressed each of the Petitioner’s arguments and the Government’s responses in
opposition to those arguments. Indeed, the magistrate judge provided additional reasoning
in the alternative, sufficient to justify denying and dismissing the Petitioner’s motion for
multiple independent reasons.
Accordingly, with no obligation to conduct de novo review and finding no clear error
in the R&R, this Court could deny and dismiss the instant motion without further comment.
Nevertheless, reaching the same result regardless of the standard applied, the Court has
reviewed the record de novo. The Court concurs with the magistrate judge in finding that
the Petitioner’s claims are precluded by his valid, knowing and intelligent waiver of his right
to collaterally attack his sentence. Furthermore, upon de novo review, the Court reaches
the same conclusions as the magistrate judge on the merits of the Petitioner’s claims.
As to any pre-indictment delay, the Government avers that a pre-indictment
investigation was completed and delivered to the United States Attorney on February 12,
2013, approximately three months before the indictment was issued in Criminal Action No.
3:13-CR-11-1. Assuming, arguendo, that the Petitioner could successfully establish that
the Government intentionally delayed in bringing the indictment against him, he cannot
demonstrate that any prejudice resulted from that delay. See United States v. Automated
Med. Labs., Inc., 770 F.2d 399, 403-04 (4th Cir. 1985). A due process violation is not
inferred simply because a defendant is prosecuted after a substantial investigative delay.
See United States v. Stinson, 594 F.2d 982, 984 (4th Cir. 1979) (citing United States v.
Lovasco, 431 U.S. 783, 796 (1977)). The few specific facts that the Petitioner alleges in
support of his claim of an impermissible delay—which include alleged violations of the
chain of custody for certain evidence—are insufficient to meet the “heavy burden” of
demonstrating actual, substantial prejudice resulting from a pre-indictment delay. See
United States v. Shealey, 641 F.3d 627, 633-34 (4th Cir. 2011) (citing Jones v. Angelone,
94 F.3d 900, 907 (4th Cir. 1996)). Turning to the Petitioner’s other claims, the information
available in the record (which includes a statement of probable cause that was apparently
used in the application for the search warrant), when viewed under the totality of the
circumstances, demonstrates that the warrant to search the Petitioner’s residence was
supported by probable cause. See Illinois v. Gates, 462 U.S. 213, 225-39 (1983).
Additionally, the Petitioner’s scattershot allegations of ineffective assistance of counsel,
which overlap with some of his other claims, cannot serve to establish that his attorney’s
performance was deficient, and, regardless, the Petitioner cannot establish the prejudice
necessary to succeed on an ineffective assistance of counsel claim. See Strickland v.
Washington, 466 U.S. 668, 687 (1984); see also Hill v. Lockhart, 474 U.S. 52, 58-59
(1985). Finally, the Petitioner’s remaining attacks on the constitutionality of his sentence,
including any intended reliance on Alleyne, are plainly without merit.
Being in full agreement with the magistrate judge’s analysis, and finding no error of
any classification, the Court ORDERS that Magistrate Judge Trumble’s Report and
Recommendation [ECF No. 4 in 3:14-CV-77; ECF No. 8 in 3:14-CV-78; ECF No. 158 in
3:13-CR-11-1; ECF No. 527 in 3:13-CR-23-2] is ADOPTED in its entirety. The Petitioner’s
Objections are OVERRULED. The Petitioner’s Motion to Compel [ECF No. 485 in 3:13CR-23-2] is DENIED AS MOOT. The Court ORDERS that the Petitioner’s motion under
28 U.S.C. § 2255 [ECF No. 1 in 3:14-CV-77; ECF No. 1 in 3:14-CV-78; ECF No. 128 in
3:13-CR-11-1; ECF No. 363 in 3:13-CR-23-2] is DENIED and DISMISSED WITH
This matter is ORDERED STRICKEN from the active docket of this Court. The
Clerk is DIRECTED to enter a separate judgment order in favor of the Respondent.
The Petitioner has not met the requirements for issuance of a certificate of
appealability. A court may issue a certificate of appealability “only if the applicant has made
a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If a
district court denies a petitioner’s claims on the merits, then “[t]he petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
“If, on the other hand, the denial was procedural, the petitioner must show ‘that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.’” United States v. McRae, 793 F.3d 392, 397 (4th
Cir. 2015) (quoting Slack, 529 U.S. at 484). Here, upon a thorough review of the record,
the Court concludes that the Petitioner has not made the requisite showing.
The Clerk is DIRECTED to transmit copies of this Order to all counsel of record and
pro se parties in the above-styled civil and criminal matters.
DATED: April 15, 2016
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