Thomas v. USA

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATION. Signed by Chief Judge Gina M. Groh on 01/08/2019. Copy mailed to pro se petitioner by CMRR. (cwm) (Additional attachment(s) added on 1/8/2019: # 1 Certified Mail Return Receipt) (cwm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
ANTHONY VANZETTI THOMAS,
Petitioner,

v.

CRIMINAL ACTION NO.: 3:16-CR-10
CIVIL ACTION NO.: 3:17-CV-111
(GROH)

UNITED STATES OF AMERICA,
Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION
Pending before the Court is the Report and Recommendation (AR&R@) of United
States Magistrate Judge Robert W. Trumble. Pursuant to this Court’s Local Rules, this
action was referred to Magistrate Judge Trumble for submission of a proposed R&R.
Magistrate Judge Trumble issued his R&R [ECF No. 182] 1 on December 12, 2018. In his
R&R, Magistrate Judge Trumble recommends that the Petitioner’s Motion to Vacate
under 28 U.S.C. § 2255 [ECF No. 137] be denied and dismissed with prejudice.
I. Standard of Review
Pursuant to 28 U.S.C. ' 636(b)(1)(C), this Court must conduct a de novo review of
the magistrate judge=s findings where objection is made. However, the Court is not
required to review, under a de novo or any other standard, the factual or legal conclusions
of the magistrate judge to which no objection is made. Thomas v. Arn, 474 U.S. 140, 150
(1985). Failure to file timely objections constitutes a waiver of de novo review and of a

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All CM/ECF references are to the criminal number, 3:16-cr-10, unless otherwise noted.

Petitioner’s right to appeal this 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).
Moreover, “[w]hen a party does make 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)). “When only a general objection is made to a portion of a magistrate judge’s reportrecommendation, the Court subjects that portion of the report-recommendation to only a
clear error review.”

Williams v. New York State Div. of Parole, No. 9:10-CV-1533

(GTS/DEP), 2012 WL 2873569, at *2 (N.D.N.Y. July 12, 2012). Courts have also held
that when a party’s objection lacks adequate specificity, the party waives that objection.
See Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (finding that
even though a party filed objections to the magistrate judge’s R&R, they were not specific
enough to preserve the claim for review). Bare statements “devoid of any reference to
specific findings or recommendations . . . and unsupported by legal authority, [are] not
sufficient.” Mario 313 F.3d at 766. Finally, the Fourth Circuit has long held, “[a]bsent
objection, we do not believe that any explanation need be given for adopting [an R&R].”
Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983) (finding that without an objection, no
explanation whatsoever is required of the district court when adopting an R&R).
Objections to Magistrate Judge Trumble=s R&R were due within fourteen plus three
days of service. 28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b). Service was accepted by
the pro se Petitioner on December 17, 2018. ECF No. 183. The Petitioner filed his

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objections on December 26, 2018. ECF No. 184. Accordingly, this Court will review the
Petitioner’s objections to the R&R de novo. The Court will review the remainder of the
R&R for clear error.
II. Discussion
Magistrate Judge Trumble recommends that this action be dismissed with
prejudice because the Petitioner cannot show that: (1) his conviction or sentence was
imposed in violation of the laws or Constitution of the United States; (2) the sentencing
court lacked jurisdiction; (3) the sentence exceeded the maximum authorized by law; or
(4) that the sentence was otherwise subject to collateral attack. In his objections, the
Petitioner only challenges the fourth finding. Specifically, the Petitioner argues that his
sentence is otherwise subject to collateral attack because his counsel, Nicholas J.
Compton, was constitutionally ineffective.
Upon review of all the filings in this matter, the Court finds that the Petitioner has
not presented any new material facts or arguments in his objections.

Rather, the

objections reiterate the same arguments the Petitioner made in his original filings, which
were considered by the magistrate judge when he issued the R&R. Specifically, these
arguments can be found in the Petitioner’s motion to vacate under 28 U.S.C. § 2255 [ECF
No. 137], the Petitioner’s motion to amend his § 2255 as a matter of course [ECF No.
149], and throughout the October 10, 2018 evidentiary hearing [ECF No. 177]. Therefore,
the Court finds that de novo review is not required because the Petitioner has failed to
make specific objections that present new facts or arguments not already before the
magistrate judge. Nevertheless, the Court will review the Petitioner’s argument that his
counsel was constitutionally ineffective below.

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A. Applicable Law
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme
Court established a two-factor test to determine whether counsel was constitutionally
ineffective. First, the Petitioner must show that his counsel’s performance “fell below an
objective standard of reasonableness.”

Id. at 688.

“Judicial scrutiny of counsel’s

performance must be highly deferential,” and the reviewing court must recognize that
“counsel is strongly presumed to have rendered adequate assistance.” Id. at 689-90.
Then, even if the court determines that counsel acted unreasonably, the judgment
of the criminal proceeding will not be set aside unless counsel’s performance was
“prejudicial to the defense.” Id. at 692. “It is not enough for the defendant to show that
the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693.
The Petitioner must show “that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
“A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id.
B. Analysis
The Petitioner argues that his counsel, Nicholas J. Compton, was constitutionally
ineffective because Mr. Compton: (1) failed to file an appeal on his behalf; and (2) failed
to make various objections at sentencing. These issues will be addressed in turn.
1. Failure to File an Appeal
First, the Petitioner argues that Mr. Compton was ineffective under Strickland
because he directed Mr. Compton to file an appeal, and Mr. Compton failed to do so. Yet,
as addressed in the R&R, Mr. Compton sent the Petitioner a letter which advised him of

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his right to appeal. The letter informed the Petitioner that he must contact Mr. Compton,
in writing, before July 5, 2017, if he wished to appeal. It is uncontested that the Petitioner
did not respond to the letter. Specifically, the Petitioner admits that he received the letter
from Mr. Compton but did not respond to the letter prior to his incarceration. ECF No.
177 at 6:22 – 7:24. Furthermore, the Petitioner cannot show that there is a “reasonable
probability” that the outcome would have been different had an appeal been filed. See
Roe v. Flores-Ortega, 528 U.S. 470 (2000). Accordingly, the Petitioner cannot satisfy
either Strickland prong and his ineffective assistance of counsel claim fails.
2. Failure to Make Objections
Next, the Petitioner argues that his attorney failed to make certain objections
during the pre-trial proceedings. Specifically, he argues that counsel failed to object to
the quantities in the drug analysis report and testimony regarding pre-buy protocols. As
discussed more fully in the R&R, the Petitioner does not show how this failure to object
was unreasonable. Furthermore, even if the Petitioner could show that counsel should
have objected, the Petitioner does not show that the outcome would have been different.
III. Conclusion
Accordingly, upon careful review of the R&R and the Petitioner’s objections, it is
the opinion of this Court that Magistrate Judge Trumble=s Report and Recommendation
[ECF No. 182 in 3:16-CR-10, ECF No. 14 in 3:17-CV-111] should be, and is hereby,
ORDERED ADOPTED for the reasons more fully stated therein. The Petitioner’s Motion
to Vacate [ECF No. 137 in 3:16-CR-10, ECF No. 1 in 3:17-CV-111] is DENIED and
DISMISSED WITH PREJUDICE. The Petitioner’s Motion to Expedite [ECF No. 145 in

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3:16-CR-57-10] and the Petitioner’s Motion to Amend [ECF No. 149 in 3:16-CR-10, ECF
No. 7 in 3:17-CV-111] are DENIED AS MOOT.
As a final matter, upon an independent review of the record, this Court hereby
DENIES the Petitioner a Certificate of Appealability, finding that he has failed to make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
This matter is ORDERED STRICKEN from the Court’s active docket. The Clerk
of Court is DIRECTED to mail a copy of this Order to the Petitioner by certified mail, return
receipt requested, at his last known address as reflected on the docket sheet.
DATED: January 8, 2019

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